Drummonds v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 9/28/18. (MRR, )

FILED
2018 Sep-28 PM 03:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
BILLIE DRUMMONDS,
Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION, Commissioner,
Defendant.

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Case No.: 4:17-cv-00058-SGC

MEMORANDUM OPINION1
The plaintiff, Billie Drummonds, appeals from the decision of the
Commissioner of the Social Security Administration (the “Commissioner”)
denying his applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”).

Drummonds timely pursued and

exhausted his administrative remedies, and the Commissioner’s decision is ripe for
review pursuant to 42 U.S.C §§ 405(g) and 1383(c)(3). For the reasons discussed
below, the Commissioner’s decision is due to be affirmed.
I. Procedural History
Drummonds has a high school degree and completed three years of college.
(Tr. at 54). She has previously worked as an accountant, a controller, and a

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The parties have consented to the exercise of full dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 8).

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cashier. (Id. at 54-57). In her applications for DIB and SSI, Drummonds alleged
she became disabled on August 20, 2013 (id. at 282, 288), as a result of
spondylosis and a pinched nerve in her lumbar spine (id. at 345, 374). After her
claims were denied, Drummonds requested a hearing before an administrative law
judge (“ALJ”). (Id. at 181). Following a hearing (id. at 50-72), the ALJ denied
Drummonds’ claims. (Id. at 129-46). The Appeals Council remanded to the ALJ
for further consideration of Drummonds’ residual functional capacity. (Id. at 15154).
The ALJ held a new hearing (id. at 73-99), following which he again denied
Drummonds’ claims (id. at 17-42). Drummonds was forty-seven years old when
the ALJ issued his second decision. (Id. at 42, 282). After the Appeals Council
declined to review the ALJ’s second decision (id. at 1-3), that decision became the
final decision of the Commissioner, see Frye v. Massanari, 209 F. Supp. 2d 1246,
1251 (N.D. Ala. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir.
1998)). Thereafter, Drummonds initiated this action. (Doc. 1).
II. Statutory and Regulatory Framework
To establish her eligibility for disability benefits, a claimant must show “the
inability to engage in 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
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less than twelve months.” 42 U.S.C. §§ 416(i)(1)(A), 423(d)(1)(A); see also id. at §
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a).

Furthermore, a DIB

claimant must show she was disabled between her alleged initial onset date and her
date last insured. Mason v. Comm’r of Soc. Sec., 430 F. App’x 830, 831 (11th Cir.
2011) (citing Moore v. Barnhart, 405 F.3d 1209, 1211 (11th Cir. 2005); Demandre
v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979)).

The Social Security

Administration employs a five-step sequential analysis to determine an individual’s
eligibility for disability benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.”

Id. at §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

“Under the first step, the claimant has the burden to show that [she] is not currently
engaged in substantial gainful activity.” Reynolds-Buckley v. Comm’r of Soc. Sec.,
457 F. App’x 862, 863 (11th Cir. 2012). If the claimant is engaged in substantial
gainful activity, the Commissioner will find the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(i) and (b), 416.920(a)(4)(i) and (b). At the first step, the ALJ
determined Drummonds met the Social Security Administration’s insured status
requirements through December 31, 2018, and has not engaged in substantial
gainful activity since her alleged onset date of August 20, 2013. (Tr. at 21).
If the claimant is not engaged in substantial gainful activity, the
Commissioner must next determine whether the claimant suffers from a severe
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physical or mental impairment or combination of impairments that has lasted or is
expected to last for a continuous period of at least twelve months. 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii).

An impairment “must result from

anatomical, physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques.” Furthermore,
it “must be established by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by [the claimant’s] statement of symptoms.” Id. at §§
404.908, 416.908; see also 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

An

impairment is severe if it “significantly limits [the claimant’s] physical or mental
ability to do basic work activities . . . .” 20 C.F.R. §§ 404.1520(c), 416.920(c). 2
“[A]n 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 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), 416.921(a). A claimant may be found disabled based on

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Basic work activities include:
(1) [p]hysical functions such as walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling; (2) [c]apacities for seeing, hearing, and
speaking; (3) [u]nderstanding, carrying out, and remembering simple instructions;
(4) [u]se of judgment; (5) [r]esponding appropriately to supervision, co-workers
and usual work situations; and (6) [d]ealing with changes in a routine work
setting.

20 C.F.R. §§ 404.1521(b), 416.921(b).

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a combination of impairments, even though none of the individual impairments
alone is disabling. 20 C.F.R. §§ 404.1523, 416.923. The claimant bears the
burden of providing medical evidence demonstrating an impairment and its
severity. Id. at §§ 404.1512(a) and (c), 416.912(a) and (c). If the claimant does
not have a severe impairment or combination of impairments, the Commissioner
will find the claimant is not disabled.

Id. at §§ 404.1520(a)(4)(ii) and (c),

416.920(a)(4)(ii) and (c). At the second step, the ALJ determined Drummonds has
the following severe impairments: multilevel spondylosis of the cervical and
lumbar spine, morbid obesity, and sciatica. (Tr. at 21).
If the claimant has a severe impairment or combination of impairments, the
Commissioner must then determine whether the impairment meets or equals one of
the “Listings” found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii); see also id. at §§ 404.1525-26, 416.925-26.
The claimant bears the burden of proving her impairment meets or equals one of
the Listings. Reynolds-Buckley, 457 F. App’x at 863. If the claimant’s impairment
meets or equals one of the Listings, the Commissioner will find the claimant is
disabled. 20 C.F.R §§ 404.1520(a)(4)(iii) and (d), 416.920(a)(4)(iii) and (d). At
the third step, the ALJ determined Drummonds does not have an impairment or
combination of impairments that meets or medically equals the severity of one of
the Listings. (Tr. at 23-25).
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If the claimant’s impairment does not meet or equal one of the Listings, the
Commissioner must determine the claimant’s residual functional capacity (“RFC”)
before proceeding to the fourth step. Id. at §§ 404.1520(e), 416.920(e); see also id.
at §§ 404.1545, 416.945. A claimant’s RFC is the most she can do despite her
impairments. See id. §§ 404.1545(a)(1), 416.945(a)(1). At the fourth step, the
Commissioner will compare his assessment of the claimant’s RFC with the
physical and mental demands of the claimant’s past relevant work. Id. at §§
404.1520(a)(4)(iv) and (e), 404.1560(b), 416.920(a)(4)(iv) and (e), 416.960(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 [the claimant]
to learn to do it.” Id. §§ 404.1560(b)(1), 416.960(b)(1). The claimant bears the
burden of proving her impairment prevents her from performing her past relevant
work. Reynolds-Buckley, 457 F. App’x at 863. If the claimant is capable of
performing her past relevant work, the Commissioner will find the claimant is not
disabled.

20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1560(b)(3), 416.920(a)(4)(iv),

416.960(b)(3).

Before proceeding to the fourth step, the ALJ determined

Drummonds has the RFC to perform a limited range3 of light work.4 (Tr. at 253

The ALJ determined Drummonds can sit at least two hours without interruption and a total of
six hours over the course of an eight-hour work day; can stand and/or walk at least one hour
without interruption and a total of at least two hours over the course of an eight-hour work day;
can frequently use her upper extremities to reach overhead; can frequently use her lower
extremities for pushing, pulling, and operating foot controls; cannot climb ladders, ropes, poles,
or scaffolds; can occasionally climb ramps and stairs; can occasionally balance, stoop, kneel, and

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38). At the fourth step, the ALJ determined Drummonds is able to perform her
past relevant work as an accountant, a controller, and a cashier. (Id. at 38-40).
Nonetheless,5 the ALJ proceeded to the fifth step and additionally determined there
are jobs that exist in significant numbers in the national economy, such as those of
electronics worker, storage facility rental clerk, office helper, production
assembler, and wire worker, Drummonds can perform given her age, education,
work experience, and RFC. (Id. at 40-41). Based on his determinations at steps
four and five of the sequential evaluation, the ALJ concluded Drummonds is not
disabled. (Id. at 41).
III. Standard of Review
Review of the Commissioner’s decision is limited to a determination of

crouch; cannot crawl; can occasionally work in humidity, wetness, and extreme temperatures;
can occasionally work in environments where dust, gases, odors, and fumes are present; cannot
work in poorly ventilated areas; cannot work at unprotected heights; cannot work with hazardous
operating machinery; can occasionally operate motorized vehicles; and can use the assistance of
an oxygen tank occasionally. (Tr. at 25).
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“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.” 20 C.F.R. §§
404.1567(b), 416.967(b).
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Generally, if the claimant can perform her past relevant work, the Commissioner will determine
the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv) and (f), 416.920(a)(4)(iv) and (f).
If the claimant is unable to perform her past relevant work, the Commissioner must finally
determine whether the claimant is capable of performing other work that exists in substantial
numbers in the national economy in light of the claimant’s RFC, age, education, and work
experience. Id. at §§ 404.1520(a)(4)(v) and (g)(1), 404.1560(c)(1), 416.920(a)(4)(v) and (g)(1),
416.960(c)(1). If the claimant is capable of performing other work, the Commissioner will find
the claimant is not disabled. Id. at §§ 404.1520(a)(4)(v) and (g)(1), 416.920(a)(4)(v) and (g)(1).
If the claimant is not capable of performing other work, the Commissioner will find the claimant
is disabled. Id.

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whether that decision is supported by substantial evidence and whether the
Commissioner applied correct legal standards. Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1158 (11th Cir. 2004).

A district court must review the

Commissioner’s findings of fact with deference and may not reconsider the facts,
reevaluate the evidence, or substitute its judgment for that of the Commissioner.
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007);
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Rather, a district 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) (internal citations omitted).

Substantial

evidence is “such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Id. It is “more than a scintilla, but less than a
preponderance.” Id. A district court must uphold factual findings supported by
substantial evidence, even if the preponderance of the evidence is against those
findings. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (citing Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
A district court reviews the Commissioner’s legal conclusions de novo.
Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). “The [Commissioner’s]
failure to apply the correct law or to provide the reviewing court with sufficient
reasoning for determining that the proper legal analysis has been conducted
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mandates reversal.” Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir.
1991).
IV. Discussion
On appeal, Drummonds argues (1) the ALJ failed to properly evaluate
Drummonds’ credibility regarding her complaints of pain, (2) the ALJ erred in
finding Drummonds’ mental impairments non-severe, and (3) the ALJ failed to
articulate good cause for assigning little weight to the opinions of Dr. Brian
Flanagan expressed in a pulmonary residual functional capacity questionnaire he
completed for Drummonds on April 8, 2014. (Doc. 13 at 5-13).
A. Credibility Determination
Drummonds testified she has lower back pain daily and this pain prevents
her from working. (Tr. at 58, 84-85). When a claimant attempts to establish
disability through her own testimony of pain or other subjective symptoms, the
pain standard articulated by the Eleventh Circuit in Holt v. Sullivan, 921 F.2d 1221
(11th Cir. 1991), applies. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005);
see also SSR 96-7p.
The pain standard requires “(1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.”
Dyer, 395 F.3d at 1210 (quoting Holt, 921 F.2d at 1223); see also SSR 96-7p.
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Provided the Holt pain standard is met, an ALJ considers a claimant’s testimony of
pain or other subjective symptoms. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.
1995); see also SSR 96-7p.
An ALJ is permitted to discredit a claimant’s subjective testimony of pain or
other symptoms if he “clearly ‘articulate[s] explicit and adequate reasons’” for
doing so. Dyer, 395 F.3d at 1210 (quoting Foote, 67 F.3d at 1561-62); see also
SSR 96-7p. “A clearly articulated credibility finding with substantial supporting
evidence will not be disturbed by a reviewing court.” Foote, 67 F.3d at 1562. In
determining credibility, an ALJ may consider objective medical evidence and a
claimant’s reported daily activities, amongst other things.

20 C.F.R. §§

404.1529(c), 416.929(c); see also SSR 96-7p.
The ALJ found Drummonds’ medically determinable impairments could
reasonably be expected to cause her alleged symptoms but that her statements
concerning the intensity, persistence, and limiting effects of those symptoms are
not entirely credible. (Tr. at 36). The ALJ articulated a number of reasons for
discrediting Drummonds’ testimony and other statements.
First, he noted that while Drummonds testified she began experiencing back
problems in 1997, she continued to work for sixteen years, suggesting her back
problems were not disabling. (Id. at 37). See Ellison v. Barnhart, 355 F.3d 1272,
1275-76 (11th Cir. 2003) (holding fact that claimant continued working for several
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years in spite of seizure disorder supported ALJ’s decision to discredit examining
physician’s opinion claimant was disabled).
Second, the ALJ noted Drummonds’ musculoskeletal examinations were
generally unremarkable and that Drummonds’ spondylosis and sciatica were
stabilized with over-the-counter pain medication. (Tr. 37). While a medical record
from Lemak Sports Medicine & Orthopedics notes Drummonds reported over-thecounter pain medication treated her back pain as adequately as prescription pain
medication and relieved her pain some (id. at 482), a medical record from
Northside Medical dated July 23, 2014, documents that Drummonds reported she
had been on multiple medications for her back and they were not helping (id. at
695).

She was prescribed Norco for her pain.

(Id. at 697).

Nonetheless,

Drummonds’ medical records do not contain objective medical evidence that
would support the conclusion her back pain is so severe as to be disabling. (Id. at
468, 470, 474, 483, 695, 708).
Finally, the ALJ noted that while various medical professionals had
suggested Drummonds pursue injections, a nerve block, and surgery for her pain,
she failed to do so. (Id. at 37; see also id. at 475, 482). See Draughon v. Comm’r,
Soc. Sec. Admin., 706 F. App’x 517, 520 (11th Cir. 2017) (holding conservative
nature of claimant’s treatment and claimant’s declination of certain treatment
supported ALJ’s decision to discredit claimant’s testimony regarding his pain).
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In sum, the ALJ clearly articulated his reasons for discrediting Drummonds’
testimony of her symptoms and their limiting effects, and that credibility
determination is supported by substantial evidence.
B. Finding of Non-Severe Mental Impairment
Drummonds argues the ALJ erred in finding her depression, anxiety, and
post-traumatic stress disorder to be non-severe. (Doc. 13 at 7-8). First, even if the
ALJ did err in this regard, the error was harmless.
The specific impairments listed in the step two finding do not affect
the outcome of the case. This is because the Commissioner is
obligated to continue with the remaining steps in the sequential
evaluation process after finding at least one severe impairment. Thus,
the Commissioner’s designation of a claimant’s other impairments as
“severe” or “non-severe” is of little consequence since all of these
impairments must be considered in combination [at step three] and in
the RFC determination.
Law v. Colvin, 2014 WL 4681188, at *4 (N.D. Ala. Sept. 19, 2014) (citing Heathy
v. Comm’r of Soc. Sec., 382 F. App’x 823, 824-25 (11th Cir. 2010)). It is clear the
ALJ considered Drummonds’ depression, anxiety, and post-traumatic stress
disorder at step three in assessing Drummonds’ RFC. (Tr. at 26, 29, 34, 37-38).
Second, the record supports the ALJ’s determination Drummonds’ mental
impairments are non-severe. Although Dr. Flanagan noted in April and June 2014
that Drummonds was significantly anxious and depressed (id. at 666-67, 669), he
also noted this was related to a prolonged hospitalization and reassured her that
anxiety after such an event was very common (id. at 670). Drummonds was
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prescribed Cymbalta and Klonopin to treat her depression, anxiety, and posttraumatic stress disorder and began seeing a therapist. (Id. at 726-737). The ALJ
noted this was conservative treatment. (Id. at 38).
C. Weight Assigned to Dr. Flanagan’s Opinions
Dr. Flanagan treated Drummonds for respiratory problems. On April 8,
2014, he completed a pulmonary residual functional capacity questionnaire opining
Drummonds’ symptoms are severe enough to interfere with her attention and
concentration constantly, Drummonds is incapable of even “low stress” jobs, and
Drummonds is unlikely to improve. (Id. at 661-664). He further opined regarding
specific physical functional limitations. (Id.). The ALJ assigned little weight to
these opinions. (Id. at 32).
“Absent ‘good cause,’ an AJL is to give the medical opinions of treating
physicians ‘substantial or considerable weight.’” Winschel v. Comm’r of Soc. Sec.,
631 F.3d 1176, 1179 (11th Cir. 2011) (quoting Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997)) (citing 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2)).
“Good cause exists ‘when the: (1) treating physician’s opinion was not bolstered
by the evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.’” Winschel, 631 F.3d at 1179 (quoting Phillips v. Barnhart, 357 F.3d
1232, 1241 (11th Cir. 2004)). “With good cause, an ALJ may disregard a treating
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physician’s opinion, but he ‘must clearly articulate [the] reasons’ for doing so.”
Winschel, 631 F.3d at 1179 (quoting Phillips, 357 F.3d at 1240-41).
Here, the ALJ assigned little weight to the opinions Dr. Flanagan expressed
in the April 8, 2014 pulmonary residual functional capacity questionnaire because
the ALJ found those opinions were based on subjective complaints that were
temporary and not chronic in nature and were not consistent with the objective
medical evidence.

(Tr. at 33-34).

On June 16, 2014, Dr. Flanagan noted

Drummonds seemed to be doing well, that she was significantly better than on
discharge from her hospitalization for a respiratory ailment and continued to
slowly improve, and that her possible interstitial lung disease seemed to be in
remission. (Id. at 669-70). He instructed Drummonds to follow-up with him in
four months (id. at 670), which the ALJ found to suggest Drummonds’ respiratory
condition was well controlled (id. at 34). Accordingly, the ALJ articulated good
cause for assigning little weight to the opinions Dr. Flanagan expressed in the
April 8, 2014 pulmonary residual functional capacity questionnaire, and that
articulation is supported by substantial evidence.
V.

Conclusion
Having reviewed the administrative record and considered all of the

arguments presented by the parties, the undersigned find the Commissioner’s
decision is supported by substantial evidence and in accordance with applicable
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law. Therefore, that decision is due to be AFFIRMED. A separate order will be
entered.
DONE this 28th day of September, 2018.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

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