Green v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 6/25/20183. (KAM)

FILED
2018 Jun-25 AM 09:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
AMANDA GAIL GREEN,
Plaintiff,
v.
NANCY BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Case No. 4:17-cv-01094-JEO

MEMORANDUM OPINION
Plaintiff Amanda Gail Green brings this action pursuant to 42 U.S.C. §
405(g), seeking review of the final decision of the Acting Commissioner of Social
Security (“Commissioner”) denying her supplemental security income (“SSI”)
benefits. (Doc. 1).1 The case has been assigned to the undersigned United States
Magistrate Judge pursuant to this court’s general order of reference. The parties
have consented to the jurisdiction of this court for disposition of the matter. See
28 U.S.C. § 636(c), FED. R. CIV. P. 73(a). Upon review of the record and the
relevant law, the undersigned finds that the Commissioner’s decision is due to be
affirmed.

1

References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of
the Court to the pleadings, motions, and other materials in the court file, as reflected on the
docket sheet in the court’s Case Management/Electronic Case Files (CM/ECF) system.

I. PROCEDURAL HISTORY
Plaintiff filed her application for SSI benefits in April 2014, alleging she
became disabled beginning May 1, 2011. It was initially denied by an
administrative law judge (“ALJ”). The Appeals Council (“AC”) denied Plaintiff’s
request for review. (R. 1).2
II. FACTS
Plaintiff was 35 years old at the time of the ALJ’s decision. (R. 29, 134).
She previously worked as a cook, a dishwasher, and a server. (R. 40, 166-67).
She alleges disability due to connective tissue disease, carpal tunnel syndrom in
both writs, fibromyalgia, lupus, bulging disc and protrusion, tendinitis, depression,
osteoarthritis, Raynaud’s disease, degenerative disc disease, anxiety, and
depression. (R. 165).
Following Plaintiff’s hearing, the ALJ found that she had the medically
determinable severe impairments of cervical and lumbar degnerative disc disease.
(R. 22). He also found that Plaintiff did not have an impairment or combination of
impairments that met or equaled the severity of a listed impairment. (R. at 24).
He further found that Plaintiff had the residual functional capacity (“RFC”) to

2

References herein to “R. __” are to the administrative record found at Docs. 8-1 through
8-10 in the court’s record.
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perform light work with limitations. (R. 25-27). He determined that Plaintiff had
no past relevant work. (R. 28). He further found that based on Plaintiff’s age,
education, work experience, and RFC, and the testimony of a vocational expert
(“VE”), Plaintiff could work as an assembler, inspector/tester, and cashier. (R. 2829). The ALJ concluded that Plaintiff was not disabled. (R. 29).
III. STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of the court is to determine whether the
Commissioner’s decision is supported by substantial evidence and whether proper
legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct.
1420, 1422 (1971); Mitchell v. Comm’r Soc. Sec., 771 F.3d 780, 782 (11th Cir.
2015; Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The 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). 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.
The court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
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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, it must reverse the ALJ’s decision. See Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). The court must affirm the
ALJ’s decision if substantial evidence supports it, even if other evidence
preponderates against the Commissioner’s findings. See Crawford v. Comm’r of
Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Martin v. Sullivan, 894
F.2d 1520, 1529 (11th Cir.1990)).
IV. STATUTORY AND REGULATORY FRAMEWORK
To qualify for 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 12 months.” 42
U.S.C. § 1382c(a)(3)(A). A physical or mental impairment is “an impairment that
results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 1382c(a)(3)(D).
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Determination of disability under the Social Security Act requires a five
step analysis. 20 C.F.R. § 416.920(a)(4). Specifically, the Commissioner must
determine in sequence:
whether the claimant: (1) is unable to engage in substantial gainful
activity; (2) has a severe medically determinable physical or mental
impairment; (3) has such an impairment that meets or equals a Listing
and meets the duration requirements; (4) can perform his past relevant
work, in light of his residual functional capacity; and (5) can make an
adjustment to other work, in light of his residual functional capacity,
age, education, and work experience.
Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014).3 The
plaintiff bears the burden of proving that she was disabled within the meaning of
the Social Security Act. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005); see also 20 C.F.R. § 416.920(a). The applicable “regulations place a very
heavy burden on the claimant to demonstrate both a qualifying disability and an
inability to perform past relevant work.” Id.
V. DISCUSSION
Plaintiff asserts that the ALJ erred in that (1) he failed to properly assess the
medical opinion of Dr. Danny Sailsbury4 and (2) his findings are not supported by

3

Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered
binding precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
4

Dr. Sailsbury’s name oftentimes appears as “Salisbury” in the record. The correct
spelling is Sailsbury. (See R. 466).
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the evidence because the VE’s testimony is premised on an incomplete
hypothetical. (R. 9-12). The Commissioner responds that substantial evidence
supports the ALJ’s determination.
A.

Medical Opinion of Dr. Sailsbury

As noted above, Plaintiff bears the burden of proving that she is disabled
within the meaning of the Social Security Act. See 20 C.F.R. § 416.920(a);
Moore, 405 F.3d at 1211; Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
Specifically, Plaintiff must provide evidence of an underlying medical condition
and either objective medical evidence confirming the severity of the alleged
symptoms or that the medical condition could be reasonably expected to give rise
to the alleged symptoms. See 20 C.F.R. § 419.929(a); Dyer v. Barnhart, 359 F.3d
1206, 1210 (11th Cir. 2005); Wilson, 284 F.3d at 1225-26; Edwards v. Sullivan,
937 F.2d 580, 584 (11th Cir. 1991). In analyzing the evidence, the focus is on
how an impairment affects Plaintiff’s ability to work, and not on the impairment
itself. See 20 C.F.R. § 416.929(c)(1); McCruter v. Bowen, 791 F.2d 1544, 1547
(11th Cir. 1986) (severity of impairments must be measured in terms of their effect
on the ability to work, not from purely medical standards of bodily perfection or
normality).
The available medical records show that on October 7, 2010, Plaintiff was
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treated for moderate lower back pain that was radiating down both legs. (R. 206).
An October 18, 2010 MRI of her spine showed right paracentral and right sided
posterior disc herniation at L4-5 with right-sided nerve impingement and mild
right paracentral posterior disc bulging without nerve root impingement at L5-S1.5
(R. 237).
Plaintiff was seen by Dr. Morris Scherlis at Tennessee Valley Pain
Consultants for pain management from December 2012 through October 2013.
Plaintiff was diagnosed with cervical and lumbar degenerative disc disease and
cervical and lumbar radiculopathy. She reported pain levels between four and
eight on a ten-point scale. She received a series of lumbar facet injections and
medial branch nerve block procedures. (R. 296, 306, 308, 319, 327, 329). She
responded well at times, reporting 80 percent pain relief from the injections. (R.
288, 314, 317). However, at other times she reported that while she was doing
well on her left side, “the right side didn’t work as well and is hurting her quite a
bit.” (R. 292, 294 (October 2013); see also R. 293 (“appears to be in moderate
discomfort”) & R. 305 (July 2013) (“the last esi [(epidural steroid injection)]
helped for a week or so with her pain but the leg pain returned[;] recommend more
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Plaintiff had another MRI on March 27, 2013, for follow-up on C1 meningiona. (R.
242). Dr. Rhett B. Murray reported this area was “neurologically intact, including the C2
dermatomes” and there was no change in the 5 to 6 mm mass near the C1 ring. (R. 241). He also
noted that Plaintiff’s reflexes and strength were good. (Id.)
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exercise”); R. 323 (“the rfc of the lsf didn’t help much more than 25%”)). She
also stated that the medications worked well without side effects. (R. 295; see
also R. 317 (“Pt denies problems, questions, or concerns regarding her
medications”)).6
Dr. Sailsbury at Holistic Pain Management began seeing Plaintiff in April
2014 for chronic lower back pain. (R. 404-06). The medical records reflect that
he saw her continuously through the early part of 2016. On March 22, 2016, Dr.
Sailsbury prepared a Medical Source Statement. He listed Plaintiff’s impairments
as including post laminectomy syndrome, cervicalgia and cervical and lumbar
radiculopathy. (R. 465). He opined that Plaintiff would be likely to miss five or
more days of work each month as a result of her impairments. She could not stoop
or climb and could infrequently sit, stand, and walk. She could occasionally lift
up to 10 pounds. She could not use her hands for fine or gross manipulation on a

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There is also evidence in the record where Plaintiff complained that the medication made
her nauseated. (R. 289, 311).
The court also notes that Plaintiff saw Dr. Kun Chen from May through October 2013.
She was referred to him for an evaluation of various medical symptoms and conditions, including
fatigue, weakness, and diffuse body pain. (R. 280). Dr. Chen noted that Plaintiff’s
musculoskeletal examinations were unremarkable and she showed no evidence of edema of the
extremities or synovitis of the hands, wrists, elbows, or knees. (R. 26, 265, 273, 280). She also
had normal grip strength and good hip flexion. (Id.) Dr. Chen diagnosed Plaintiff as having
possible fibromyalgia. (R. 265).
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full-time basis, and could infrequently raise either arm over shoulder level. (Id.)
He also opined that Plaintiff had severe pain as a result of her condition, and
would be expected to be off task for up to 60 percent of the work day. Dr.
Sailsbury further stated that Plaintiff would need to elevate her legs above her
waist three to four times each day for an hour at a time, that she would need to lie
down for an hour several times each day, and that she would need extra
unscheduled breaks during a typical work day. (R. 466). Finally, he opined that
Plaintiff had side effects from the Xanax she was taking, which would interfere
with her ability to focus and concentrate. (Id.)
In evaluating Dr. Sailsbury’s Medical Source Statement, the ALJ stated:
As for the opinion evidence, little weight is given to Dr. Salisbury’s
[sic] medical source statement, as it is a check-mark type form
prepared by the claimant’s attorney in contemplation of the disability
hearing that is not part of the treatment records and not consistent
with the physician’s contemporaneous treatment records. While he
assessed the claimant as having severe fine/gross manipulative
limitations, significant medication side effects, and indicated the
claimant could sit, stand, walk and raise the upper extremities over
shoulder level on an infrequent basis and would be unable to sustain
an 8-hour workday, his treatment notes actually show that throughout
2015 and in January 2016, the claimant consistently reported that her
chronic pain was responding well to medication without side effects
and that she had a moderate to average physical activity level.
Although the evidence contains complaints of chronic back and neck
pain, records from Dr. Salisbury [sic] and other treating sources
contain no significant complaint from the claimant that asserted an
inability to sit, stand, walk, lift and carry. While he opined that the
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claimant would be off task 60 percent of the day and would miss 5 or
more days of work per month, the Dictionary of Occupational Titles
(DOT) contains no definition of the term “off task” and his opinion
regarding more than 5 absences from work per month is not supported
by the frequency of his treatment records, the complaints noted in
those records, any vocational assessment from an individual with
expertise in vocational matters, or the claimant’s testimony at the
hearing (Exhibits 4F, 5F, 6F, 7F, 8F, and 9F).
(R. 27). Plaintiff asserts that the ALJ’s characterization of Dr. Sailsbury’s
treatment record for her is not accurate. (Doc. 11 at 10). Specifically, she states:
Contrary to the ALJ’s assertions, Dr. Sailsbury’s contemporaneous
treatment notes show Plaintiff had constant, burning, stabbing pain in
her lower back, particularly when trying to increase her physical
activity, perform postural maneuvers such as bending, or stay in a
sitting or standing position for extended periods. Tr. 403-64. The
ALJ asserted the treatment notes showed Plaintiff engaging in a
“moderate to average physical activity level,” but did not provide
citations to any specific treatment note showing this level of activity.
The treatment notes actually show Plaintiff’s pain worsening every
time she tried to be more physically active. Plaintiff’s difficulties
with standing, walking, lifting, and carrying are well documented in
Dr. Sailsbury’s treatment notes. The ALJ erred here by improperly
substituting his own lay opinion for that of Plaintiff’s treating medical
professional. The ALJ asserted the treatment notes did not support
Dr. Sailsbury’s conclusions, but did not cite any specific portions of
those treatment notes which were actually inconsistent with any of the
limitations Dr. Sailsbury assessed. A comparison of the treatment
notes at Tr. 403-64 with Dr. Sailsbury’s formal medical source
statement at Tr. 465-66 reveals that the limitations Dr. Sailsbury
described are entirely consistent with Plaintiff’s treatment history.
The rest of the medical evidence, including the MRI scans from 2010
and 2012 showing bulging discs resulting in foraminal stenosis in
Plaintiff’s lumbar spine (Tr. 237, 395), provides further support.
(Id. at 10-11). The Commissioner argues that the ALJ assigned proper weight to
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Dr. Sailsbury’s opinion. (Doc. 14 at 7). In support of this position, the
Commissioner states that Dr. Sailsbury’s treatment notes from January 2015
through January 2016 show that Plaintiff consistently reported that her chronic
pain was responding well to medication without side effects and that she had a
moderate to average physical activity level. (Doc. 14 at 9 (citing R. 417, 419, 422,
424, 426, 428, 432, 434, 444, 446, 448, 461)). The Commissioner further states
that “although the evidence contains complaints of chronic back and neck pain,
records from Dr. [Sailsbury] and other treating sources contain no significant
complaint from Plaintiff [of] an inability to sit, stand, walk, lift, and carry.” (Id. at
9 (citing R. 406-64)). Finally, the Commissioner states that Dr. Sailsbury’s
treatment records do not support his opinion that Plaintiff will experience more
than five absences from work per month. (Id. at 10 (citing R. 27, 406-63)). Thus,
the Commissioner concludes that substantial evidence supports the ALJ
assessment of Dr. Sailsbury’s opinion and the RFC determination. (Id.)
The court has examined each of Dr. Sailsbury’s treatment notes and finds as
follows: (1) Plaintiff’s pain levels varied from a low of “4” to a high of “10” with
most being recorded at a moderate level of “6”;7 (2) Plaintiff consistently
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More specifically, from July 15, 2014, through January 26, 2016, Plaintiff reported a
pain level of “4” two weeks (July 15, 2014 (R. 452) and December 1, 2015 (R. 417)); a level of
“5” once (August 12, 2014 (R. 450)); a level of “6” fifteen weeks (September 11, 2014, October
7, 2014, November 4, 2014, December 2, 2014, February 24, 2015, March 24, 2015, April 21,
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complained that her back pain was chronic, constant, or stabbing and increased
with or was caused by activity (R. 417, 419, 420, 422, 424, 426, 432, 434, 436,
438, 440, 442, 444, 446, 448, 450, 452, 461, 463); (3) Plaintiff’s physical activity
was varied, including average, fair, limited, “ok,” “forced,” moderate, low, and
very low (id.); (4) Plaintiff’s memory and concentration were good;8 and (5)
Plaintiff’s medications generally worked well without side effects.9 Thus, the
court’s observations and conclusions do not exactly fit with either party’s
contentions. The court finds that the ALJ’s characterization of Plaintiff’s activity
as “moderate”10 is not particularly appropriate. That term is found only once in the
foregoing treatment records. The most frequently used terms are “limited,”

2015, May 19, 2015, June 16, 2015, July 14, 2015, August 11, 2015, September 8, 2015, October
5, 2015, December 29, 2015 & January 26, 2016 (R. 420, 422, 424, 426, 428, 430, 432, 434, 436,
442, 444, 446, 448, 461, 463)); a level of “8” twice (January 6, 2015 & November 11, 2015 (R.
419, 440)); and a level “10” once (January 17, 2015 (R. 438)).
8

There were 21 entries in the records concerning concentration and memory. Fifteen
entries indicated they were “good,” five indicated they were “ok,” and one was left blank. (R.

417, 419, 420, 422, 424, 426, 428, 430, 432, 434, 436, 438, 440, 442, 444, 446,
448, 450, 452, 461, 463).
9

Plaintiff reported on one occasion that her medication was not effective, except to take
the “edge off” the pain (R. 438). This report was on the same date that she was experiencing
pain at a level of “10”.. She also stated on another occasion that the medication caused her to
have constipation. (R. 434).
10

“Moderate” is defined, in pertinent part, as “avoiding extremes of behavior or
expression,” “tending toward the mean or average amount or dimension,” or “having average or
less than average quality.” https://www.merriam-webster.com/dictionary/moderate (last visited
June 21, 2018).
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“average,” and “fair.”11 Additionally, the ALJ’s analysis does not take into
consideration Plaintiff’s consistent refrain that sitting, bending, walking, standing,
being in a single position too long (over ten minutes), and other activity caused or
increased her pain. (R. 417, 419, 420, 422, 424, 426, 428, 430, 432, 434, 436,
438, 440, 442, 444, 446, 448, 450, 452).
Having noted the deficiencies in the ALJ’s analysis, the court also finds that
the record does not support Dr. Sailsbury’s opinion that Plaintiff would be “off
task 60 percent of the day,” that she would miss five or more days of work per
month, that she would need to elevate her feet above her waist three to four times a
day due to pain, fatigue and medication side effects, and that she would need to lie
down three to four times daily for one hour at a time. (R. 26, 465-66). To the
contrary, as noted above, Plaintiff’s concentration and memory are good; overall,
she does well with her medication; and her average pain levels are in the moderate
category. Additionally, the court notes that the ALJ correctly found that Plaintiff
testified that she could care for her children, load the dishwasher, do laundry,
grocery shop, and drive. (R. 25, 41-43, 50-51).
In sum, the court finds that while the record documents Plaintiff’s
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The most consistently used term was “limited.” (R. 422, 438, 442, 444, 446, 448, 450,
452). The next most commonly used terms were “average” and “fair” – three times each (R.
417, 419, 420, 428, 461, 463). She did complain twice that her activity level was low due to
pain. (R. 436, 440).
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complaints of chronic back pain, it also supports the ALJ’s finding that Plaintiff is
not as limited as she alleges and his RFC determination that she can perform light
work with various limitations. Plaintiff’s challenges do not adequately refute the
ALJ’s determination that she is not disabled.
B.

Incomplete Hypothetical

Plaintiff next argues that the VE’s testimony is flawed in that it was
premised on an incomplete hypothetical question. (Doc. 11 at 11). Specifically,
she argues that the hypothetical posed by the ALJ in this case “failed to include
Plaintiff’s limitations in lifting, sitting, standing, walking, carrying, using her
hands, completing a normal work day or work week without interruption from her
symptoms, or maintaining regular attendance.” (Id. at 12). The Commissioner
responds that the ALJ’s hypothetical to the VE “contained all Plaintiff’s credible,
supported limitations, and substantial evidence from the record supports the ALJ’s
determination.” (Doc. 14 at 11). The court agrees.
“In order for a VE’s testimony to constitute substantial evidence, the ALJ
must pose a hypothetical question which comprises all of the claimant’s
impairments.” Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). “If the ALJ
presents the vocational expert with incomplete hypothetical questions, the
vocational expert’s testimony will not constitute substantial evidence.” Jacobs v.
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Comm’r of Soc. Sec., 520 F. App’x 948, 950 (11th Cir. 2013) (citing Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1180-81 (11th Cir. 2011)).
The hypothetical posed to the VE by the ALJ included references to an
individual who could perform light work without climbing ladders, ropes, or
scaffolds; without being around work hazards; without frequently climbing ramps
or stairs, balancing, stooping, kneeling, crouching or crawling; and without doing
any commercial driving. (R. 56). The court finds this question to be reflective of
Plaintiff’s abilities and limitations as determined by the ALJ. Plaintiff’s medical
records demonstrate that she generally responded somewhat favorably to her
medication and her injections; she had moderate pain levels as a rule; and she had
a reasonable amount of physical activity and mobility consistent with the ALJ’s
RFC finding. Because the court finds that Plaintiff’s purported needs for
numerous breaks, being off task 60 percent of the workday, and more than five
days off per month due to her situation are not supported by substantial evidence,
the addition of these elements to the hypothetical was unnecessary. Plaintiff’s
claim is therefore without merit.
In sum, the court cannot find under the record that Plaintiff is entitled to any
relief. Substantial evidence supports the ALJ’s decision.

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VI. CONCLUSION
For the reasons set forth above, the undersigned concludes that the decision
of the Commissioner is due to be affirmed. An appropriate order will be entered
separately.
DONE, this the 25th day of June, 2018.

______________________________
JOHN E. OTT
Chief United States Magistrate Judge

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