Nance v. Social Security Administration, Commissioner
Filing
17
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 8/31/2018. (AFS)
FILED
2018 Aug-31 PM 04:26
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
KIMBERLY YVETTE NANCE,
Plaintiff,
vs.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.
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Civil Action Number
4:17-cv-00378-AKK
MEMORANDUM OPINION
Kimberly Yvette Nance brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the final adverse decision of the Commissioner of the Social
Security Administration (“SSA”). This court finds that the Administrative Law
Judge (“ALJ”) applied the correct legal standard and that his decision—which has
become the decision of the Commissioner—is supported by substantial evidence.
Therefore, the court AFFIRMS the decision denying benefits.
I. Procedural History
Nance worked as a certified nursing assistant for more than fifteen years
until she stopped working in 2013 at age 41 due to her alleged disability. Doc. 7-3
at 62, 71. Nance filed her application for Title II Disability Insurance Benefits on
October 7, 2013, asserting that she suffered from a disability, beginning September
17, 2013, caused by a failed lumbar disc repair and several other disabling
impairments, including osteoarthritis, fibromyalgia, and depression. Docs. 7-3 at
34; 7-4 at 2-4, 7; 7-6 at 2. The SSA denied Nance’s application, doc. 7-5 at 4, and,
shortly thereafter, Nance requested a formal hearing before an ALJ, id. at 10.
At the hearing held on April 7, 2015, Nance was represented by a nonattorney. Doc. 7-3 at 34, 58. The ALJ subsequently entered a decision finding that
Nance was not disabled. Id. at 31, 49–50. Nance obtained new representation and
appealed. Id. at 28–29. The SSA Appeals Council summarily affirmed the ALJ’s
decision denying disability benefits, rendering the ALJ’s decision the final decision
of the Commissioner. Id. at 2. Having exhausted her administrative remedies,
Nance filed this action pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
2
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “‘reasonable
and supported by substantial evidence.’” Id. (quoting Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “‘[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.’” Martin, 894 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239). If supported by substantial evidence, the
court must affirm the Commissioner’s factual findings even if the preponderance
of the evidence is against those findings. See id. While judicial review of the
ALJ’s findings is limited in scope, it “does not yield automatic affirmance.” Lamb,
847 F.2d at 701.
In contrast to the deferential review accorded the Commissioner’s factual
findings, “conclusions of law, including applicable review standards, are not
presumed valid” and are subject to de novo review. Martin, 894 F.2d at 1529. The
Commissioner’s failure to “apply the correct legal standards or to provide the
reviewing court with sufficient basis for a determination that proper legal
principles have been followed” requires reversal. Id.
3
III. Statutory and Regulatory Framework
To qualify 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 less than twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i)(1). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Social Security Act requires a five-step
analysis. 20 C.F.R. § 404.1520(a). Specifically, the ALJ must determine in
sequence:
(1)
whether the claimant is currently unemployed;
(2)
whether the claimant has a severe impairment;
(3)
whether the impairment meets or equals one listed by the Secretary;
(4)
whether the claimant is unable to perform his or her past work; and
(5)
whether the claimant is unable to perform any work in the national
economy.
See McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
4
than step three, leads to a determination of ‘not disabled.’” Id. (citing 20 C.F.R. §
416.920(a)-(f)). “Once [a] finding is made that a claimant cannot return to prior
work the burden of proof shifts to the Secretary to show other work the claimant
can do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). However, the
claimant ultimately bears the burden of proving that she is disabled, and,
“consequently [s]he is responsible for producing evidence in support of he[r]
claim.” See, e.g., Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citing
20 C.F.R. § 416.945(a), (c)).
IV. The ALJ’s Decision
In performing the five-step analysis, the ALJ first determined that Nance
met the insured status requirements of the Social Security Act through December
31, 2017, and that she had not engaged in “substantial gainful activity since
September 17, 2013, the alleged onset date” of her disability. Doc. 7-3 at 35.
Accordingly, the ALJ proceeded to Step Two of the analysis, finding that Nance
had the following severe impairments: “obesity, lumbar degenerative disc disease,
osteoarthritis, and depression.” Id. at 37. The ALJ also identified numerous nonsevere impairments including: “hypothyroidism, gastroenteritis, vitamin D
deficiency, left ankle/foot sprain, upper respiratory infection, bursitis, mitral valve
prolapse, and hematuria.” Id. Significantly, the ALJ concluded that Nance had
failed to establish her history of fibromyalgia as a medically determinable
5
impairment. Id. at 39. In any event, because he found that three of Nance’s
impairments are severe, id. at 37, the ALJ proceeded to Step Three of the analysis
and found that none of Nance’s impairments, considered singly or in combination,
met or “medically equal[ed] the severity of one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1 . . . .” Id. at 39.
Next, the ALJ determined Nance’s residual functional capacity (“RFC”),
finding that:
[Nance] has the [RFC] to perform light work as defined in 20 CFR
§ 404.1567(b) except [she], as part of a job requirement, should not
climb ladders, ropes, scaffolds, nor perform around work hazards.
[Nance] could occasionally climb ramps or stairs, kneel or crawl; and
[she] could frequently stoop or crouch. Additionally, [Nance] could
understand and remember simple instructions and carry out those
instructions and sustain attention to routine tasks for extended periods.
[Nance] cold tolerate ordinary work pressure, but should avoid quick
decision-making, rapid changes and multiple demands. [Nance]
would benefit from regular rest breaks and a slowed pace but can
maintain a work pace consistent with the mental demands of
competitive level work. Contact with the public should be no more
than occasional. [Nance] can accept supportive feedback and can
adopt to infrequent, well-explained changes in the work requirements
or work process.
Doc. 7-3 at 42. Based on this RFC, and relying on the testimony of a vocational
expert (“VE”), at Step Four, the ALJ found that Nance could not return to her past
relevant work as a certified nursing assistant. Id. at 48. The ALJ then proceeded
to Step Five of the disability analysis, where, based on Nance’s RFC, age, prior
work experience, and the VE’s testimony, the ALJ concluded that “there are jobs
6
that exist in significant numbers in the national economy that [Nance] can
perform,” including laundry worker and marker. Id. at 48-49. Alternatively, the
ALJ determined that if Nance’s RFC is reduced to a sedentary level, there are still
jobs that exist in the national economy that she could perform, including as a
surveillance system monitor, and machine operator feeder. Id. at 49. As a result,
the ALJ concluded that Nance was not disabled on September 17, 2013 through
August 18, 2015, the date of his decision. Id. at 49-50.
V. Analysis
On appeal, Nance objects to the ALJ’s decision on several grounds. First,
Nance argues that the ALJ improperly discounted her reports of disabling pain.
Second, she contends that the ALJ did not afford proper weight to the opinion
evidence submitted by Dr. Anthony Sims, a treating physician. Third, Nance
asserts that the ALJ erred by finding that her impairments did not medically equal
or exceed a listed impairment, specifically Listing 1.04A dealing with disorders of
the spine. Fourth, Nance claims the ALJ’s determination of her RFC and the
ALJ’s decision were not supported by substantial evidence. Finally, Nance argues
that the AC did not properly review new evidentiary submissions submitted on
appeal and chronologically related to the evidentiary record before the ALJ. The
court addresses each of Nance’s contentions in turn.
7
A.
Whether the ALJ Erred by Finding Nance’s Pain Testimony was not
Credible
Nance argues that the ALJ erred by rejecting her subjective complaints of
pain. Doc. 12 at 50-55. When, as here, the plaintiff alleges disability because of
pain, she must present “(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.”
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citation omitted). Thus, a
plaintiff’s “subjective testimony supported by medical evidence that satisfies the
standard is itself sufficient to support a finding of disability.”
omitted).
Id. (citations
However, an ALJ may properly discredit a claimant’s subjective
testimony if the ALJ clearly articulates his reason for doing so and substantial
evidence supports the ALJ’s finding. Wilson v. Barnhart, 284 F.3d 1219, 1225
(11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995).
At the administrative hearing in this matter, Nance testified that she stopped
working on September 17, 2013 due to constant pain. Doc. 7-3 at 62. Nance
further testified that she has difficulty sitting and has to “move around constantly”
and that she can only stand or walk for about five minutes at a time. Id. at 75.
According to Nance, her back surgeon, Dr. Franklin Sammons, told her that her
pain is intractable, and he does not want her “bending, twisting, [or] lifting” more
8
than five pounds. Id. at 61, 73. Nance appeared at the hearing wearing a back
brace, and she testified that she had used the brace since her back surgery on
November 7, 2014 and may have to use it for up to one year because her back was
not healing correctly. Id. at 61. Nance added also that she suffers from depression
and anxiety due to her pain and impairments. Id. at 62, 74. The ALJ considered
Nance’s subjective complaints of pain, and, applying the correct standard,
determined that Nance’s “medically determinable impairments could reasonably be
expected to cause some functional limitations; however, [Nance’s] statements
concerning the intensity, persistence and limiting effects of these symptoms are not
entirely credible . . . .” Id. at 43.1
A review of the record shows that the ALJ adequately articulated his reasons
for rejecting Nance’s pain testimony and that his decision was supported by
substantial evidence.
Specifically, the ALJ extensively reviewed the medical
records and explained why Nance’s subjective reports of pain were not consistent
with the medical records. Id. at 43-46.
1
On March 28, 2016, SSR 16-3p superseded SSR 96-7p, the ruling concerning subjective
complaints about pain that was in effect when the ALJ issued a decision in this case. Soc. Sec.
Ruling 16-3p (S.S.A. Oct. 25, 2017), 2017 WL 5180304, at *1. SSR 16-3p eliminates the term
“credibility” from social security policy but does not change the factors that an ALJ should
consider when examining subjective pain testimony. See id., at *2-3. Moreover, SSR 16-3p
does not apply retroactively, Hargress v. Soc. Sec. Admin., Comm’r, 874 F.3d 1284, 1290 (11th
Cir. 2017), and when a federal court reviews a final decision in a claim for DIB, the court
reviews the decision using the rules that were in effect at the time of the decision. SSR 16-3p,
2017 WL 5180304, at *1.
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First, as noted by the ALJ, Nance’s self-reports to her medical providers
about her back pain varied and were often more consistent with moderate, rather
than disabling, levels of discomfort. Docs. 7-3 at 46-47; 7-11 at 39; 7-14 at 9, 75,
79. Moreover, Nance’s subjective complaints were not consistent with objective
evidence in the record, including that Nance had a normal gait, normal strength,
and generally normal range of motion upon examination, with, at most, only a
moderate decrease in range of motion in certain areas. Docs. 7-3 at 46-47; 7-11 at
10, 16, 37, 39-40, 49, 81, 85, 90, 108; 7-2 at 15; 7-14 at 7, 9-10, 44, 75, 79.
Although, as Nance testified, Dr. Sammons diagnosed her with “intractable back
pain,” he made that diagnosis prior to Nance’s lumbar fusion surgery. Doc. 7-12 at
46. After the surgery, Nance complained of continuing and increasing back pain,
but post-surgery imaging revealed that the hardware for her lumbar fusion was in
good position, her spine had normal alignment, her spinal canal was wellmaintained, and, although she had “a vertebral body hemangioma at the L2 level,”
she had no significant disc abnormalities. Doc. 7-14 at 48-50. That the surgery
proved successful is evident in the fact that several months afterwards, Nance
reported to Dr. Sims, her primary care physician, that her back pain improved with
anti-inflammatory use. Id. at 75, 79.
Second, with respect to her depression, the ALJ noted Nance had never seen
a mental health specialist, and her medical history did not reveal any serious
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cognitive symptoms and reflects that her symptoms were well-controlled with
medication. See docs. 7-3 at 62; 7-11 at 36-44.
Additionally, the ALJ noted that Nance had reported experiencing
significant improvement with conservative therapy. Doc. 7-3 at 45. Indeed, Nance
reported that she experienced a significant improvement with a selective nerve root
block (“SNRB”), and in particular that “she [was] 90% improved” after her first
SNRB in May 2013, though she did not experience relief after a second SNRB in
September 2013. Docs. 7-11 at 110; 7-12 at 5. Although the second SNRB did not
help her pain, Nance reported to Dr. Sims in April 2014 that her back pain
improved with anti-inflammatory use.
Doc. 7-11 at 39.
Nance’s reported
improvement from conservative treatments provides support for the ALJ’s decision
to discount her subjective pain testimony. See Dyer, 395 F.3d at 1211–12 (relying
on claimant’s improvement with treatment as inconsistent with his subjective
complaints); Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996).
Finally, the ALJ considered evidence that although Nance was repeatedly
referred to physical therapy and instructed to exercise more frequently, Nance
failed to take advantage of this treatment modality. Doc. 7-3 at 45. For example,
shortly after Nance’s back surgery, Dr. Sammons referred Nance to four weeks of
physical therapy. Doc. 7-14 at 20-21. To the extent that Nance participated in
physical therapy, treatment notes indicate that her prognosis and potential for relief
11
through rehabilitation was “good.” Id. at 17-27. Additionally, the medical record
indicates that increasing Nance’s core strength through physical therapy could
improve her pain within four weeks, but Nance attended only three of eight
prescribed physical therapy appointments and stopped physical therapy after 1.5
weeks. Id. Among other things, the regulations specifically authorize the ALJ to
consider the effectiveness of a mode of treatment and the measures taken by the
claimant to relieve her symptoms. 20 C.F.R. § 404.1529(c)(3). Thus, the ALJ
adequately explained his decision to discredit Nance’s subjective complaints of
pain, and substantial evidence supports the decision.
It is clear from the record that Nance repeatedly reported significant amounts
of pain, particularly prior to her back surgery in November 2014. She obviously
has been dealing with a significant and undoubtedly unpleasant issue for years.
Still, credibility determinations are the province of the ALJ. Wilson v. Heckler,
734 F.2d 5513, 517 (11th Cir. 1984). Here, the “ALJ made a reasonable decision
to reject [Nance’s] subjective testimony, articulating, in detail, the contrary
evidence as his reason[] for doing so.” Wilson v. Barnhart, 284 F.3d 1219, 1226
(11th Cir. 2002). Thus, in light of the record and the substantial deference owed to
the Commissioner’s decision, Dyer, 395 F.3d at 1212, the court affirms the ALJ’s
ruling discounting Nance’s subjective accounts of pain.
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B.
Whether the ALJ Erred by Giving Little Weight to Dr. Sims’
Opinions
Nance also argues that the ALJ failed to properly weigh the opinions of her
treating physician, Dr. Anthony Sims. Doc. 12 at 26-31. Specifically, Nance
contends that the ALJ should have given more weight to opinions contained in Dr.
Sims’ statement dated April 29, 2014, a physician’s certification dated May 19,
2014, and an opinion letter dated March 4, 2015. See doc. 12 at 26-28; see also
doc. 7-3 at 46-47. In the April 29, 2014 statement, Dr. Sims opines that Nance is
restricted from performing any of her occupational duties, including walking,
lifting, bending, and moving, and that Nance cannot sit for more than one hour or
stand for more than thirty minutes. Doc. 7-11 at 63. In the May 19, 2014
certification, Dr. Sims opines that Nance cannot engage in any substantial gainful
activity due to her fibromyalgia. Id. at 56. Then, in his March 4, 2015 letter, Dr.
Sims opines that Nance’s November 7, 2014 back surgery “is considered a failed
lumbar intervertebral disc repair” and that he did not “feel [Nance] could be
gainfully employed partially due to her physical condition and the mental demands
of a work situation.” Doc. 7-14 at 34.
The ALJ considered those opinions, but gave them little weight. Doc. 7-3 at
46-47. Nance attacks this decision, arguing that the ALJ erred by principally
relying on a consultative, non-examining physician to reject Dr. Sims’ opinions.
Nance is correct that generally, “‘opinions of non-examining, reviewing physicians
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. . . when contrary to those of examining physicians are entitled to little weight, and
standing along do not constitute substantial evidence.’” Doc. 12 at 29 (quoting
Lamb, 847 F.2d at 703). Here, however, an examination of the entirety of the
ALJ’s decision belies Nance’s assertion and reveals that the ALJ had “good cause”
for discounting Dr. Sims’ opinions. 2
As an initial matter, and as noted by the ALJ, Dr. Sims’ opinions that Nance
is basically fully disabled and is restricted from performing any occupational duties
are not medical opinions, but are instead legal issues reserved for the
Commissioner. See 20 C.F.R. § 404.1527(d); Coheley v. Soc. Sec. Admin., 707
Fed. Appx. 656, 659 (11th Cir. 2017); Hutchison v. Astrue, 408 Fed. Appx. 324,
327 (11th Cir. 2011) (finding that an opinion regarding whether a claimant “could
hold a job is a vocational opinion, not a medical one” and is a “question reserved to
the ALJ”); see also doc. 7-3 at 46-47. As such, those opinions are not entitled to
any weight, see 20 C.F.R. § 404.1527(d)(3), and the ALJ did not err by assigning
them little weight.
2
The ALJ must give “substantial or considerable weight” to the opinion of a treating
physician “unless ‘good cause’ is shown.” Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir.
2003) (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). “Good cause exists
‘when []: (1) [the] treating physician’s opinion was not bolstered by the evidence; (2) evidence
supported a contrary finding; or (3) [the] treating physician’s opinion was conclusory or
inconsistent with the doctor’s own medical records.’” Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1179 (11th Cir. 2011) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir.
2004)). The ALJ must clearly articulate the reasons for not giving substantial or considerable
weight to a treating physician’s opinions. Id.
14
Second, with respect to the opinion letter submitted by Dr. Sims in March
2015 stating that the surgery was a failed surgery, the medical record before the
ALJ indicated that Dr. Sims last saw Nance prior to the surgery. Doc. 7-3 at 46.3
Thus, Dr. Sims’ non-contemporaneous assessment did not reflect Nance’s current
medical prognosis, id. at 44, 46, and was not entitled to significant weight.
Moreover, when weighing Dr. Sims’ opinion regarding Nance’s back surgery, the
ALJ appropriately considered that Dr. Sims is a general practitioner and not a
specialist. See 20 C.F.R. § 404.1527(c)(5); see also doc. 7-3 at 46.
Third, the ALJ also properly considered that Dr. Sims’ opinions were not
consistent with his own treatment notes. For example, although Dr. Sims opined
that Nance should be restricted from all occupational duties, Dr. Sims’ treatment
notes reflect that Nance described her back pain as moderate and reported that her
back pain improved with anti-inflammatory use. Docs. 7-11 at 39; 7-14 at 9, 75,
79. His notes also reflect that Nance typically had a normal range of motion and
normal strength upon physical examination, that he recommended that Nance
exercise regularly, and that Nance’s physical condition was generally “normal.”
Docs. 7-10 61-61; 7-11 at 37-38; 40-41, 46-47, 49, 81, 85-86, 88, 90; 7-14 at 7, 103
The court recognizes that on appeal, Nance submitted a record of examinations
conducted by Dr. Sims in February and April 2015. Doc. 7-14 at 77-82. However, notes from
those examinations reflect that Nance reported that her back pain improved with antiinflammatory use. Id. Moreover, among other things, Dr. Sims’ recommended that Nance
engage in “[r]egular, low-impact exercises three times a week.” Id. at 77. In short, Dr. Sims
contemporaneous observations of Nance, which were not before the ALJ, do not cast doubt on
the ALJ’s conclusion that the evidence did not support Dr. Sims’ opinion.
15
11, 77, 82. These entries by Dr. Sims undermine his subsequent assessment of
Nance as being incapable of doing any work. See 20 C.F.R. § 404.1527(c)(3),
(c)(4); Phillips, 357 F.3d at 1241 (explaining that good cause to discount a treating
physician’s opinion is shown when that “opinion was . . . inconsistent with the
doctor’s own medical records”); see also doc. 7-3 at 46-47.
In addition, as noted by the ALJ, Nance’s objective medical records did not
support the extent of the physical limitations articulated by Dr. Sims. See doc. 7-3
at 46-47. For example, although Nance reported that her back pain increased after
her surgery, doc. 7-14 at 39, imaging following her surgery reflects that, among
other things, her spine was normally aligned and that the surgery appeared
successful, id. at 50.
Indeed, Nance’s back pain responded to conservative
treatment after her back surgery, id. at 75, 79, and the physical therapy notes
suggest that Nance would respond quickly to rehabilitation, id. at 20. Moreover,
notes in her medical records typically describe Nance as having normal range of
motion and strength upon examination. Docs. 7-10 at 53, 61; 7-11 at 10, 16; 7-12
at 15, 39. Additionally, with respect to Nance’s osteoarthritis, that condition was
described, by the treating orthopedist, as “very minimal.” Doc. 7-11 at 16. In
short, the record contains ample evidence that is contrary to Dr. Sims’ opinions and
provides an adequate basis for the ALJ to find good cause to give Dr. Sims’
opinions less weight. See Phillips, 357 F.3d at 1241.
16
The court is tasked solely with assessing whether the ALJ applied correct
legal standards and reached a decision that was both “reasonable and supported by
substantial evidence.” Martin, 894 F.2d at 1529. In that respect, the court may not
second guess the ALJ’s findings or substitute its judgment for that of the
Commissioner. Id. Here, the record indicates that the ALJ had good cause to
discount Dr. Sims’ opinion and that substantial evidence supports his decision.
Accordingly, the ALJ did not err in according little weight to Dr. Sims’ opinion.
C.
Whether Nance’s Impairments Medically Meet or Exceed Impairment
Listing 1.04A
Nance disagrees with the ALJ’s finding that Nance’s impairments,
considered singly or in combination, do not meet the criteria of Listing 1.04, which
deals with disorders of the spine. Doc. 7-3 at 39.4 Nance contends that her
medical records and testimony support a contrary finding in her favor. Doc. 12 at
4
Listing 1.04 involves “Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord.
With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of
pain, limitation of motion of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test (sitting and supine); or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue
biopsy, or by appropriate medically acceptable imaging, manifested by severe burning
or painful dysesthesia, resulting in the need for changes in position or posture more than
once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on
appropriate medically acceptable imaging, manifested by chronic nonradicular pain and
weakness, and resulting in inability to ambulate effectively.
See 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
17
32-44.
The issue before the court, however, is whether substantial evidence
supports the ALJ’s finding, not whether evidence may support a contrary finding.
See Martin, 894 F. 2d at 1529 (citations omitted). Unfortunately for Nance, the
record supports the ALJ’s decision that her impairments do not meet or medically
equal Listing 1.04A.
For Nance’s back impairment to meet Listing 1.04A, the impairment “must
meet all of the specified medical criteria [for the listing]. An impairment that
manifests only some of those criteria, no matter how severely, does not qualify.”
Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original) (citation
omitted).
Further, for Nance to show that her “unlisted impairment, or
combination of impairments, is ‘equivalent’ to a listed impairment, [she] must
present medical findings equal in severity to all the criteria for the one most similar
listed impairment.” Id. at 531 (emphasis in original) (citation omitted). Finally, a
qualifying impairment “must have lasted or be expected to last for a continuous
period of twelve months.” Wilkinson ex rel. Wilkinson, 847 F.2d at 663. Thus, the
physical findings used to establish that the claimed impairment meets or medically
equals a listing must persist “over a period of time . . . established by a record of
ongoing management and evaluation.” 20 C.F.R. pt. 404, subpt. P. app. 1, §
1.00D.
18
Turning to the specifics here, the ALJ concluded that Nance’s back
impairment did not meet all of the objective criteria of Listing 1.04A, noting that
the medical records show that Nance never presented at any exam with a “loss of
motor strength, muscle atrophy, loss of sensation, [and] loss of reflex.” Doc. 7-3 at
39-40. This conclusion is borne out by even a cursory review of the medical
evidence. As discussed above, Nance’s medical records frequently reflect that she
presented with normal reflexes and sensation and with normal motor strength.
Docs. 7-3 at 44; 7-10 at 53, 61; 7-11 at 37, 40, 49, 81, 85, 90; 7-14 at 7, 10.
Moreover, as the Commissioner points out, while Nance sometimes failed straight
leg tests in her right leg, the medical records do not indicate if that test was
administered both sitting and supine as the regulations require. See docs. 7-9 at 79;
7-10 at 6, 10, 19, 23. Finally, to the extent that Nance presented with some deficits
in the listed categories, i.e., sensory and reflex loss, or loss of muscle strength, the
medical record does not reflect that these symptoms persisted over time. Indeed,
as noted repeatedly above, Nance typically presented as generally normal, aside
from her reports of pain and some limits on her range of motion, and the record
also reflects that these ailments responded to treatment. Thus, Nance’s medical
records provide substantial evidence to support the ALJ’s determination that
Nance’s back impairment does not meet or medically equal Listing 1.04A.
19
In addition, the ALJ followed the correct legal standards in determining
whether Nance’s impairments satisfy any of the listings. In accordance with SSR
02-1p, the ALJ considered whether the cumulative effect of Nance’s obesity, in
combination with her back impairment, would medically equal one of the listings.
Doc. 7-3 at 40. While the ALJ recognized that Nance’s obesity complicates her
back impairment, he correctly noted that the obesity did not limit her ability to
perform work functions prior to her alleged onset date and that Nance “does not
have any symptoms of spinal or neurogenic claudication” and is able to ambulate
without assistance. Id.
Nance’s argument boils down to regurgitating the medical record and asking
this court to substitute its judgment for that of the ALJ – which the court cannot do.
Section 1383(c) mandates that the Commissioner’s “factual findings are conclusive
if supported by ‘substantial evidence.’” Martin, 894 F.2d at 1529. And, the court
may not reconsider the facts, reevaluate the evidence, or substitute its judgment for
that of the Commissioner. Id. The ALJ need not have reached the correct decision,
only a reasonable one supported by substantial evidence. For the reasons described
above, the court concludes that the ALJ correctly applied the law, and substantial
evidence supported his conclusion that Nance failed to show that her medical
impairments met or exceeded Listing 1.04A. Accordingly, this portion of the
ALJ’s opinion is due to be affirmed.
20
D.
Whether Substantial Evidence Supports the RFC Determination and
the ALJ’s Finding that Nance Could Perform Other Work in the
National Economy
Nance argues that the ALJ’s determination of her RFC was conclusory and,
although it summarized the medical evidence, lacked a discernable rationale as
required by Social Security Ruling 96-8p. The court disagrees. “A claimant’s
[RFC] is a matter reserved for the ALJ’s determination . . . .” Beegle v. Soc. Sec.
Admin. Comm’r, 482 Fed. Appx. 483, 486 (11th Cir. 2012) (citing 20 C.F.R.
§ 404.1527(d)(2)). In making this determination, the ALJ is fully qualified to
evaluate the medical evidence on his own, and he is not required to rely on medical
opinion evidence regarding a claimant’s capabilities. See, e.g., Green v. Soc. Sec.
Admin., 223 Fed. Appx. 915, 923 (11th Cir. 2007) (explaining that the ALJ is free
to evaluate physician’s opinions regarding the claimant’s capabilities “in light of
the other evidence presented and [noting that] the ultimate determination of
disability is reserved for the ALJ”) (citations omitted). Moreover, as the Eleventh
Circuit has explained, “[t]he ALJ’s RFC assessment may be supported by
substantial evidence even in the absence of an opinion from an examining medical
source about [the] Plaintiff’s functional capacity.” Id. at 923.
Here, as Nance admits, the ALJ thoroughly summarized the information in
the medical record as well as the supporting opinion testimony, noting the weight
afforded to various opinion evidence, and articulating the reasons behind those
21
credibility decisions. See doc. 7-3 at 34-50. Among other things, the ALJ noted
that Nance’s condition appeared to improve, even with conservative treatment, that
her overall health was typically reported as “good,” that Nance’s reports of pain
and discomfort were generally moderate, and that she generally was assessed as
having a normal gait strength and only mild limitations, if any, in terms of her
strength and range of motion. Id. at 42–48. As noted by the ALJ, the medical
record also shows that imaging after Nance’s back surgery revealed that her spine
was normally aligned and that the surgical result appeared stable. Id. at 44; see
also doc. 7-14 at 50. Indeed, after her surgery, Nance was referred to physical
therapy with a “good” prognosis. Doc. 7-14 at 20. Thus, objective medical
evidence supports the ALJ’s determination that Nance could perform less than a
full range of light work.
Even so, the ALJ’s determination that Nance could “occasionally climb
ramps or stairs, kneel or crawl, [and] could frequently stoop or crouch” is
troubling. See doc. 7-3 at 42. The ALJ failed to fully articulate the basis for these
exertional limitations. See id. While as discussed above, substantial evidence
supports the overall determination that Nance’s symptoms were not as severe as
she indicated, the record also reflects that Nance continues to undergo treatment
for a chronic back condition, and there is no formal evaluation of Nance’s ability to
climb stairs, kneel, crawl, stoop, and crouch. Thus, the ALJ erred by finding that
22
Nance could occasionally climb stairs, kneel, and crawl, and frequently stoop and
crouch. See Thomason v. Barnhart, 344 F. Supp. 2d 1326, 1330 (N.D. Ala. 2004)
(holding that an ALJ’s decision was not based on substantial evidence when,
among other things, there was an absence of evidence formally evaluating the
claimant’s work capabilities).
However, as pointed out by the Commissioner, the doctrine of harmless
error applies to Social Security appeals. Diorio v. Heckler, 721 F.2d 726, 728
(11th Cir. 1983). And, the court is mindful of the limited scope of its review, e.g.,
that it reviews the ALJ’s decision as a whole and need only determine that the
decision is “‘reasonable and supported by substantial evidence.’” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
Here, the ALJ specifically
articulated, in the alternative, that if Nance’s RFC was reduced to the sedentary
level, with the same limitations as previously provided, she would still have the
capacity to perform over 40,000 jobs in the national economy. Doc. 7-3 at 49.
This number of jobs is significant enough to defeat a finding of disability. See
Atha v. Comm’r of Soc. Sec., 616 F. App’x 931, 935 (11th Cir. 2015) (finding that
23,800 jobs in the national economy was sufficient to support a finding that the
claimant was not disabled). Nance does not argue that this alternative finding was
unsupported by substantial evidence, see doc. 12, and, in such an instance, remand
would constitute a “wasteful corrective exercise” because no further findings are
23
required to sustain the ALJ’s decision based on the entire record.
Ware v.
Schweiker, 651 F.2d 408, 412 (5th Cir. 1981).
It is evident that Nance believes the evidence supports a contrary finding and
that she disagrees with the ALJ’s ruling on the merits. However, even if the
evidence preponderates against the Commissioner’s finding, the court must still
affirm so long as the ALJ correctly applied the law and his decision was supported
by substantial evidence. Martin, 894 F.2d at 1529. Although the ALJ should have
more explicitly articulated the link between the medical evidence and his RFC
determination, “he did consider all of the evidence and found that it did not support
the level of disability [Nance] claimed,” Freeman v. Barnhart, 220 Fed. Appx.
957, 960 (11th Cir. 2007), and Nance fails to point to anything that the ALJ
overlooked or failed to address.
For the reasons explained above, the court finds that substantial evidence
supports the ALJ’s overall decision that Nance is not disabled.
E.
Whether the Appeals Council Erred by Failing to Review New
Relevant Evidence
Finally, Nance argues that the Appeals Council erred by failing to review
evidence she submitted on appeal. Doc. 12 at 56-64. In general, a claimant may
present new evidence in support of her application at each stage of the
administrative process. Ingram v. Comm’r of Soc. Sec. Admin, 496 F.3d 1253,
1261 (11th Cir. 2007) (citing 20 C.F.R. § 404.900(b)). “The Appeals Council must
24
consider new, material, and chronologically relevant evidence and must review the
case if ‘the administrative law judge’s action, findings, or conclusion is contrary to
the weight of the evidence currently of record.’” Id. (quoting 20 C.F.R.
§ 404.970(b) (effective through January 16, 2017)). 5 “New evidence is
chronologically relevant if it ‘relates to the period on or before the date of the
ALJ’s hearing decision.’” See Hargress v. Soc. Sec. Admin., Comm’r, 883 F.3d
1302, 1309 (11th Cir. 2018) (quoting 20 C.F.R. § 404.970(b)).
First, the Appeals Council did not consider records from Midway Medical
Clinic, LLC and from Henagar Family Medicine that Nance submitted on appeal
because the records are dated after the ALJ rendered his decision and, as such, are
not chronologically relevant. See doc. 7-3 at 3, 9-23 (records dated from August
27, 2015 through February 12, 2016, which is after the ALJ’s August 18, 2015
decision).6 Moreover, a review of the records reveals that they do not relate to
Nance’s condition at the time of or before the ALJ’s decision. Instead, the records
consist of notes describing Nance’s symptoms and treatment beginning on August
5
20 C.F.R. § 404.970 was amended effective January 17, 2017. See 81 FR 90987-01.
The court relies on the prior version of 20 C.F.R. § 404.970 that was in effect on January 9, 2017
when the AC denied review in Nance’s case.
6
In its decision denying review, the Appeals Council states that it “looked at office
treatment records from Midway Medical dated August 27, 2015 through February 12, 2016,” but
does not mention records from Henagar Family Medicine. Doc. 7-3 at 3. Nance suggests as a
result that the Appeals Council did not look at records from Henagar. Doc. 12 at 57. Nance’s
argument on this point is unavailing. The new medical records at issue consist of records from
Midway Medical dated December 8, 2015 through February 12, 2016, doc. 7-3 at 9-16, and
records from Henagar dated August 27, 2015 through December 1, 2015, id. at 7-23. Thus,
based on the dates cited, the Appeals Council did review the records from Henagar.
25
27, 2015. See id. As a result, the Appeals Council properly declined to consider
the records from Midway Medical Clinic and Henagar Family Clinic on the
grounds that they are not chronologically relevant. See Hargress, 883 F.3d at
1309-10 (finding that medical records that post-dated the ALJ’s decision were not
chronologically relevant when “nothing in the[] new medical records indicates that
the doctors considered [the claimant’s] past medical records or that the information
in them relates to the period at issue”).
Next, the Appeals Council considered new records that Nance submitted on
appeal from Huntsville Hospital, but determined that the records did not provide a
basis to change the ALJ’s decision. Doc. 7-3 at 3, 6.7 The Huntsville Hospital
records relate to Nance’s March 2015 treatment for chest pain and mitral valve
prolapse. Doc. 7-14 at 57-67; see also doc. 12 at 56-57. However, the ALJ
considered evidence that Nance had mitral valve prolapse, and he found that the
condition was a non-severe impairment. Doc. 7-3 at 37-38; see also doc. 7-11 at
92. Also, as the ALJ noted, Nance reported to a physician on April 2, 2015 that
she did not have chest pain, and no abnormalities were noted about her
7
The Appeals Council also considered records that Nance submitted from Dr. Sims,
docs. 7-3 at 7; 7-14 at 74-83, but Nance does not argue that those records provide a basis to
change the ALJ’s decision, see doc. 12 at 56-64. Those records consist of treatment notes dated
February 13, 2015 through May 5, 2015. Doc. 7-14 at 74-83. With respect to the notes relating
to Nance’s back pain, the new records from Dr. Sims reflect that her pain improved with antiinflammatory use and that Dr. Sims recommended over-the-counter medications to treat her pain.
Id. at 75, 77. Thus, the new records provide further support for the ALJ’s decision, and not a
basis to change the decision.
26
cardiovascular system upon exam that day. Docs. 7-3 at 38; 7-14 at 43-44. Thus,
the Huntsville Hospital Records that Nance submitted to the Appeals Council do
not show that the ALJ’s decision is contrary to the weight of the evidence, and the
Appeals Council properly denied review.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Nance is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching his decision. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.
DONE the 31st day of August, 2018.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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