Sanic v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION AND ORDER that the final decision of the Commissioner is AFFIRMED and a final judgment will be entered separately as more fully set out in order. Signed by Judge Liles C Burke on 1/23/2019. (AHI)

FILED
2019 Jan-23 AM 10:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
ROLANDO PEREZ SANIC,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.

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Case No.: 4:17-cv-1662-LCB

MEMORANDUM OPINION AND ORDER
On September 27, 2017, Plaintiff, Rolando Perez Sanic, filed a complaint
(Doc. 1) seeking judicial review of an adverse final decision of the Commissioner
of the Social Security Administration (“the Commissioner”) pursuant to 42 U.S.C.
§ 405(g).

On April 6, 2018, Plaintiff filed a brief in support (Doc. 9). On April

25, 2018, the Commissioner filed a Memorandum in Support (Doc. 10).
Therefore, this matter is ripe for review. For the reasons stated below, the final
decision of the Commissioner is affirmed.
I.

BACKGROUND
On April 21, 2014, plaintiff filed application for benefits under Title II for a

period of disability and disability insurance benefits under the Social Security Act
alleging February 17, 2014, as his onset of disability. On February 18, 2016, the

administrative law judge (“ALJ”), Bruce W. MacKenzie, conducted a video
hearing. The ALJ presided in Birmingham and the plaintiff appeared in Gadsden,
Alabama. (Tr. 23). Plaintiff, his attorney, an interpreter, and vocational expert
(“VE”) were present at the hearing. (Id.). On August 31, 2016, the ALJ issued his
decision. In doing so, the ALJ engaged in the five-step sequential evaluation
process promulgated by the Commissioner to determine whether an individual is
disabled. (Id. at 23-38). The ALJ made the following findings:
1. Claimant meets the insured status requirements of the Social Security Act
through December 31, 2018, but not thereafter. (Id. at 25).
2. Claimant has not engaged in substantial gainful activity since February
17, 2014, the alleged onset date (20 CFR 404.1571 et seq.). (Id.).
3. The claimant has the severe impairments of status post anterior cervical
and fusion with post laminectomy syndrome; lumbar degenerative disc
disease with LS disc bulge with stenosis; left shoulder AC arthritis and
tendinosis; migraine headaches; and, vertigo (20 CFR 404.1520(c)).
(Id.).
4. 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 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526). (Id. at 32).
5. After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except he would require a sit/stand option
with the retained ability to stay on or at a workstation in no less than 30
minute increments each without significant reduction of remaining on
task. He is able to ambulate short distances up to 100 yards per instance
on flat hard surfaces. He is able to frequently use left hand controls and
his left hand is non-dominant. He is able to frequently reach overhead
with the left non-dominant hand; can frequently climb ramps and stairs,
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but never climb ladders or scaffolds; and can occasionally stoop, crouch,
kneel, and crawl. He would be restricted from performing quick, rapid,
or repetitive movements of the head to the left, right, up, or down, but
can perform in occupations where head and neck movements are slow
and self-paced. He should never be exposed to unprotected heights or
operate commercial motor vehicles; would be limited to routine and
repetitive tasks and simple work-related decisions; and in addition to
normal workday breaks, he would be off task five percent of an eight
hour workday (non-consecutive minutes). (Id. at 32-33).
6. The claimant is unable to perform any of the claimant's past relevant
work (20 CFR 404.1565). (Id. at 36).
7. The claimant was born on June 15, 1976 and was 37 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset
date (20 CFR 404.1563). (Id.).
8. The claimant may not be able to communicate in English, and will be
considered in the same way as an individual who is illiterate in English
(20 CFR 404.1564). (Id.).
9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is "not disabled," whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2). (Id.).
10.Considering the claimant's age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569 and
404.1569(a)). (Id.).
11.The claimant has not been under a disability, as defined in the Social
Security Act, from February 17, 2014, through the date of this decision
(20 CFR 404.1520(g)). (Id. at 37).
Plaintiff requested an appeal to the Appeals Council, which denied his
request for review on July 26, 2017. (Tr. 1). At that point, the ALJ’s decision
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became the final decision of the Commissioner. Henry v. Comm’r of Soc. Sec.,
802 F.3d 1264, 1267 (11th Cir. 2015). Plaintiff then filed this action on September
27, 2017. (Doc. 1).
II.

DISCUSSION
The Social Security Act authorizes payment of disability insurance benefits

and supplemental social security income to persons with disabilities. 42 U.S.C. §§
423, 1381 (2012). The law defines disability 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 12 months.” 20 C.F.R. §§
404.1505(a), 416.905(a).1
A.

Standard of Review

The Court must determine whether the Commissioner’s decision is
supported by substantial evidence and whether the correct legal standards were
applied. Winschel v. Comm’r of Social Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).
“Substantial evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. (internal
1

On January 18, 2017, the Social Security Administration significantly revised its regulations
regarding the evaluation of medical evidence to determine a disability; those new regulations
became effective on March 27, 2017. The Court, however, must apply the regulations in effect
at the time that the ALJ entered his decision. See Ashley v. Comm'r, Soc. Sec. Admin., 707 F.
App'x 939, 944 n.6 (11th Cir. 2017) (“We apply the regulations in effect at the time of the ALJ’s
decision.”). Because the ALJ entered his decision on August 31, 2016, the Court will apply the
regulations in place at that time.
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citation and quotation marks omitted). “This limited review precludes deciding the
facts anew, making credibility determinations, or re-weighing the evidence.”
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Thus, while the Court
must scrutinize the record as a whole, the Court must affirm if the decision is
supported by substantial evidence, even if the evidence preponderates against the
Commissioner’s findings. Henry v. Comm’r of Soc. Sec., 802 F.3d 1264 (11th Cir.
2015); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
B.

Five-Step Sequential Evaluation

The Social Security Administration has promulgated regulations that set
forth a five-step sequential evaluation process that an ALJ must follow in
evaluating a disability claim. 20 C.F.R. §§ 404.1520, 416.920. In summary, the
evaluation proceeds as follows:
1. Is the claimant engaged in substantial gainful activity? If the answer is
“yes,” the claimant is not disabled. If the answer is “no,” proceed to the
next step. Id.
2. Does the claimant have a medically determinable impairment or
combination of impairments that satisfies the duration requirement and
significant limits his or her ability to perform basic work activities? If
the answer is “no,” the claimant is not disabled. If the answer is “yes,”
proceed to the next step. Id.
3. Does the claimant have an impairment that meets or medically equals the
criteria of a listed impairment within 20 C.F.R. Part 404, Subpart P,
Appendix 1? If the answer is “yes,” the claimant is disabled. If the
answer is “no,” proceed to the next step. Id.

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4. Does the claimant have the RFC to return to his or her past relevant
work? If the answer is “yes,” then the claimant is not disabled. If the
answer is “no,” proceed to the next step. Id.
5. Even if the claimant cannot perform past relevant work, does the
claimant’s RFC, age, education, and past work experience allow him or
her to perform a significant number of jobs in the national economy? If
the answer is “yes,” the claimant is not disabled. If the answer is “no,”
the claimant is disabled. Id.
The claimant bears the burden of proof with respect to the first four steps.
Washington v. Comm'r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018). The
burden then shifts to the Commissioner at the fifth step to prove the existence of
jobs in the national economy that the claimant is capable of performing; however,
the burden of proving lack of RFC always remains with the claimant. Id.
C.

Plaintiff’s Allegations

Plaintiff alleges in his complaint that the ALJ’s finding of not disabled is
erroneous for the following reasons:
1. The final decision of the Commissioner denying benefits to Plaintiff is
not supported by substantial evidence; and
2. Plaintiff also alleges that the position of the Commissioner is not
substantially justified.
(Doc 1, p. 1). Plaintiff argues in his brief that the ALJ should have given less
weight to the opinions of his treating physicians under his worker’s compensation
claim.

As a result, plaintiff argues that the ALJ failed to properly evaluate

plaintiff’s complaints of pain. The Court disagrees.
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1. Opinions of treating physicians
Plaintiff’s disability claim results from work related injuries to his neck and
back. (Doc. 9).

Plaintiff suffered three injuries while employed as a press

operator, which is considered heavy work. 2 (Tr. 59). His injuries include one to
the his low back and/or lumbar spine in 2006; second to his neck and/or cervical
spine in 2011; and the third was an aggravation of the previous lower back injury
in 2013. (Tr. 55-56).

The injury in 2006 is mentioned in medical notes and

testimony, but there are no treatment records regarding this injury. In March of
2012, Dr. Scholl 3 performed an anterior cervical discectomy and fusion on his
neck. (Tr. 621-22). Dr. Scholl notes in May of 2012, that the procedure went well,
found he was at maximum medical improvement (MMI), and released him back to
work without restrictions.

(Tr. 624).

In March of 2013, Dr. Scholl gave the

plaintiff a 25% permanent partial impairment (PPI) rating to the body as a whole
and released him back to full activities without restrictions. (Tr. 291-92). Plaintiff
returned to work without medical restrictions until February 17, 2014, when he
stopped working and/or his date of onset. (Tr. 190, 200).

Plaintiff requested

and received a second opinion by Dr. Johnson in April of 2013. Dr. Johnson
concurred with Dr. Scholl’s rating and opinion to release him back to work without

2

“Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects
weighing up to 50 pounds.” 20 C.F.R. ' 404.1567(d).
3
Dr. Scholl is a Board Certified Orthopedic Surgeon, per his deposition given in the workers’ compensation case
and attached to the record. (Tr. 284).

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restriction. (Tr. 330).

In March of 2014, he was treated by Dr. Jones for the

injury to his lower back. (Tr. 344-350). Dr. Jones notes during this period that
X-Rays are unremarkable, recommended physical therapy and no changes to his
work status or limitations. (Tr. 550). In August of 2014, Dr. Jones referred
plaintiff for a functional capacity exam (FCE). The FCE concluded that plaintiff
was limited to medium work. 4 (Tr. 344-350). Based upon this exam, Dr. Jones on
September 14, 2015, released the plaintiff back to work with the restrictions
outlined in the FCE, reducing him to medium level work. (Tr. 344).

The ALJ in

this case afforded “great weight” to the opinions of Dr. Scholl, Dr. Johnson, and
Dr. Jones who treated him for his work related injuries to his neck and back. (Tr.
35).
The plaintiff argues that the ALJ erred by giving “great weight” to these
opinions. Specifically, stating that:
“In Alabama, employees injured on the job are generally required to
see providers designated by their employer or the employer’s workers
comp insurance carrier. See Ala. Code (1975), § 25-5-77(a). Because
the workers comp system is adversarial, it follows that opinions from
providers designated by the adverse party should be entitled to greater
weight when favorable to the claimant and reviewed more carefully
when unfavorable. See Garcia v. Colvin, 219 F.Supp.3d 1063, 1074
(D. Colorado 2016). In fact, the limitations provided in the workers
compensation context are likely to overestimate the capability of the
claimant so that he or she is not hindered in attempting to work. See
further discussion Garcia v. Colvin at 1074.”
4

Medium work is defined as work that involves “lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds.” 20 C.F.R. ' 404.1567(c).

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(Doc. 9, p. 14-15).

Plaintiff cites the decision in Garcia, a U.S. District Court

opinion from the 10th Circuit as legal precedent for his argument. In Garcia the
court did address the weight given to opinions of treating physicians under
workers’ compensation, but under the Workers' Compensation Act of Colorado.5
Id. at 1074. Garcia is not applicable here for two reasons: (1) it is based upon the
analysis of Colorado workers’ compensation law rather than Alabama workers’
compensation law 6 and (2) a district court decision it is generally not binding on
this court.

Our Circuit as held that “ [i]n cases involving questions of federal law

the doctrine of stare decisis also implicates the binding nature of decisions
rendered by one federal court over another. The general rule is that a district
judge's decision neither binds another district judge nor binds him. . .” McGinley
v. Houston, 361 F.3d 1328, 1331 (11th Cir. 2004).
Notwithstanding, contrary to plaintiff’s argument the court in Garcia is
admonishing an ALJ for not giving “great weight” to the claimant’s worker’s
compensation physicians. Id. at 1074. The ALJ in Garcia gave less weight and/or
disregarded the opinions of the claimant’s physicians operating under the Workers'
Compensation Act of Colorado, in part, because their opinions were solicited by
either the employer or the employee.
5
6

The court in Garcia strongly disagreed by

Workers' Compensation Act of Colorado C.R.S. ' 8-41-101, et seq. (2016).
Alabama Workers' Compensation Act, § 25–5–1 et seq., Ala. Code 1975.

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reversing and remanding the case for an immediate award of benefits. Id. at 1075.7
This Circuit has held that the opinion of a treating physician “must be given
substantial or considerable weight unless ‘good cause’ is shown to the contrary.”
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997), citing MacGregor v.
Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) and Broughton v. Heckler, 776 F.2d
960, 961–62 (11th Cir. 1985). This reliance on a treating physician’s opinion is
consistent with the Commissioner’s regulations:
Generally, we give more weight to opinions from your treating
sources, since these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.
20 CFR § 404.1527(d)(2). Conversely, an ALJ may give less weight or disregard
the opinion of a treating physician altogether when the record substantially
supports findings that “the (1) treating physician's opinion was not bolstered by
the evidence; (2) evidence supported a contrary finding; or (3) treating physician's
opinion was conclusory or inconsistent with the doctor's own medical records.”
Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir.2004).
Plaintiff in this case essentially adopts the ALJ’s position in Garcia,
asserting that the opinions of treating physicians under the Alabama Workers’
7

It should be noted that this was the second time this case had come before the district court having been remanded
previously for the same reason. Garcia at 1070.

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Compensation Act overstate a patient’s abilities and/or are less credible because
they “. . .come from employer-paid workers comp providers.” (Doc. 9, p.15).
Hence, they should be given less weight than the opinions of other treating
physicians operating outside of the workers’ compensation system.

This

proposition is not found in the social security regulations, statutes or case law.
The plaintiff is only challenging the weight given by the ALJ to the workers’
compensation medical opinions as they relate to his analysis of the plaintiff’s
complaints of pain. More specifically, plaintiff is objecting to their opinions
regarding the plaintiff’s ability to return to work without restrictions, alleging that
they disregarded his pain in their medical opinions.
Dr. Scholl, Dr. Johnson, and Dr. Jones are all medical professionals,
orthopedic surgeons, who the claimant developed a significant treating relationship
concerning the injuries in question. Plaintiff filed a worker’s compensation claim,
accepted the treatment of these physicians and based upon their opinions and
treatment returned to work without any restrictions until his onset date of February
17, 2014. The opinions of these physicians are consistent with the objective
medical evidence at the time the opinions were rendered.

Plaintiff has failed to

present any evidence and/or “good cause” as at why their opinions should be given
less weight or disregarded. MacGregor v. Bowen, 786 F.2d at 1053.
Consequently, the weight given by the ALJ to these medical source opinions is
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supported by substantial evidence.
2. Complaints of pain
Where a claimant attempts to establish disability, in part, based on subjective
complaints of pain and other symptoms, he must show (1) evidence of an
underlying medical condition; and (2) either (a) objective medical evidence
confirming the severity of the alleged pain arising from that condition; or (b) that
the objectively determined medical condition is of such severity that it can
reasonably be expected to give rise to the claimed pain. Wilson v. Barnhart, 284
F.3d 1219, 1225 (11th Cir. 2002); 20 C.F.R. §§ 404.1529(a), 416.929(a).

If the

objective medical evidence does not confirm the severity of the alleged pain, but
indicates that a medically determinable impairment could reasonably be expected
to produce the alleged symptoms (i.e., 2(b)), the ALJ must evaluate the intensity
and persistence of the claimant’s symptoms and the extent to which they limit the
claimant’s capacity for work. 20 C.F.R. §§ 404.1529(c), 416.929(c). In doing so,
the ALJ must necessarily make credibility determinations regarding a claimant’s
reports of pain or other symptoms; if the ALJ discredits a claimant’s subjective
testimony, he must articulate his reasons for doing so. Wilson, 284 F.3d at 1225.
In evaluating the intensity and persistence of a claimant’s symptoms, the
ALJ will consider information submitted about same, including the individual’s
daily activities; location, duration, frequency, and intensity of the pain or other
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symptoms; precipitating and aggravating symptoms; type/dosage, effectiveness,
and side effects of any medication taken to alleviate the symptoms; treatment,
other than medication, the claimant has received for relief of pain or other
symptoms; other measures used to relieve the symptoms; and any other factors
concerning functional limitations and restrictions due to pain or other symptoms.
SSR 96-7p, 1996 WL 374186 at *2.
In Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014),
the court discussed credibility determinations as follows:

“We have held that

credibility determinations are the province of the ALJ, Moore v. Barnhart, 405
F.3d 1208, 1212 (11th Cir. 2005), and we will not disturb a clearly articulated
credibility finding supported by substantial evidence, Foote v. Chater, 67 F.3d
1553, 1562 (11th Cir. 1995) . . . ‘there is no rigid requirement that the ALJ
specifically refer to every piece of evidence in his decision, so long as the ALJ's
decision . . . is not a broad rejection which is not enough to enable [a reviewing
court] to conclude that the ALJ considered [the claimant's] medical condition as a
whole.’ Dyer, 395 F.3d at 1211 (quotation and brackets omitted).” See also Brito
v. Comm’r, Soc. Sec. Admin., 687 Fed. Appx. 801, 803, (11th Cir. 2017).
Secondary to plaintiff’s improper weight argument, plaintiff claims that the
ALJ failed to correctly assess the plaintiff’s level of pain. The ALJ’s pertinent
finding is as follows:
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After careful consideration of the evidence, the undersigned finds that
the claimant's medically determinable impairments could reasonably
be expected to cause some symptoms; however, the claimant's
statements concerning the intensity, persistence, and limiting effects
of these symptoms are not entirely consistent with the medical
evidence and other evidence in the record for the reasons explained in
this decision.
(Tr. 32-33).

The ALJ found several inconsistencies between plaintiff’s testimony

regarding the intensity and persistence of his alleged symptoms and his level of
functioning. (Tr. 33-36). For instance, plaintiff alleges disabling pain (continuing
pain on an average level of 5/10 on good days and 9/10 on bad days); however, he
submitted a disability function report wherein he states that he can lift 20 pounds,
walk one (1) mile, drive up to 20 miles a day, and had no problems with personal
care, going to church and school events. (Tr. 239-249).

Further, at the hearing

plaintiff gave conflicting testimony when asked to explain these day-to-day
activities whereby he answered “I don’t have activities because I’m at home. I
don’t have any other activities.” (Tr. 57). Plaintiff’s admitted exertional level and
participation in these activities conflicts with his testimony at the hearing that his
pain was at such a level as to prevent him from performing any gainful activity. 8
Additionally, the ALJ supported his findings with substantial evidence by
8

Courts have upheld an ALJ’s adverse credibility determination when it was based in part on the claimant’s ability
to perform limited household chores. See, e.g., Pennington v. Comm'r of Soc. Sec., 652 F. App'x 862, 872–73 (11th
Cir. 2016) (“Moreover, an ALJ properly may rely on a claimant's daily activities in making credibility
determinations.”); Parks v. Comm'r of Soc. Sec., 353 F. App'x 194, 197 (11th Cir. 2009) (“The ALJ expressly based
the credibility determination on Parks' ability to take care of her personal needs, including errands, driving, and
attending church, and the fact that her medication was controlling her pain. The record supports the ALJ's
conclusion because it shows Parks was able to cook, clean, run errands, drive, and attend church weekly.
Additionally, medical evidence shows Parks' medication reasonably controlled her pain.”).

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citing numerous instances where the medical evidence did not support plaintiff’s
intensity and persistence of pain. The records of Dr. Scholl and Dr. Johnson do
not reveal pain to the degree alleged by plaintiff for they both recommended that
he could return to work without restrictions. (Tr. 302, 428).

Likewise, Dr. Jones

upon an FCE recommended in September of 2015, that plaintiff return to medium
work without mention of pain to the degree alleged by plaintiff. (Tr. 344-350).
The ALJ held that the restrictions by Dr. Jones were more consistent with light
work and his order reflects light work with further restrictions as the plaintiff’s
current RFC. (Tr. 35).

As noted earlier, there are no medical treatment records

regarding the injury in 2006. Plaintiff’s medical records from 2011 thru 2012, do
not reveal any complaints of neck or back pain. (Tr. 378-399, 416-424). Medical
imaging of the cervical and thoracic spine in 2013 and 2014 were normal without
disc herniation or spinal stenosis. (Tr. 433-434, 476, 478, 492, 493). The ALJ
notes one MRI of the lumbar spine in November of 2014, showing a disk bulge
and stenosis. (Tr. 538).

Other than this MRI, all other objective testing fails to

support the level of pain alleged by the plaintiff.
The ALJ did a comprehensive review of the longitudinal treatment record
and specifically addressed the weight given to each medical source.

The ALJ

states that there is “no evidence that any treating physician has reported that the
claimant had disabling pain or limitations.” (Tr. 34).
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Again, plaintiff has not

contested the weight given by the ALJ to any of the other medical source opinions.
The ALJ found that the plaintiff had pain, just not to the level that he could no
longer perform any gainful activity and/or light work with restrictions. In sum,
there is substantial evidence to support the ALJ’s finding of not disabled.
Therefore, the Court finds no error here.
III.

CONCLUSION
For these reasons, and the Court otherwise being otherwise sufficiently

advised, it is ORDERED that the final decision of the Commissioner is
AFFIRMED. A final judgment will be entered separately.

DONE this January 23, 2019.

_________________________________
LILES C. BURKE
UNITED STATES DISTRICT JUDGE

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