Jackson v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION AND ORDER that the final decision of the Commissioner is AFIRMED and a final judgment will be entered separately, as more fully set out in order. Signed by Judge Liles C Burke on 1/17/2019. (AHI)

FILED
2019 Jan-17 AM 09:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DAVID RAY JACKSON,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No.: 4:17-cv-1719-LCB

MEMORANDUM OPINION AND ORDER
On February 12, 2017, plaintiff David Ray Jackson 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 March 8, 2018, plaintiff filed a memorandum (Doc. 10). On April 6,
2018, the Commissioner filed a memorandum (Doc. 11). Therefore, this matter is
ripe for review.

For the reasons stated below, the final decision of the

Commissioner is affirmed.
I.

BACKGROUND
On December 19, 2013, plaintiff filed an application for a period of

disability and disability insurance benefits; plaintiff also filed an application for
supplemental social security income on the same day.

(Tr. 19).

In both

applications, plaintiff alleged disability beginning on February 1, 2013. (Id.). On
October 21, 2015, the administrative law judge (“ALJ”), Walter V. Lassiter, Jr.,
conducted a video hearing from Franklin, Tennessee. (Id. at 75). Plaintiff, his
attorney, and a vocational expert (“VE”) were present at the hearing. (Id.). On
February 25, 2016, the ALJ issued his decision. In doing so, the ALJ engaged in
the five-step sequential evaluation process promulgated by the Commission to
determine whether an individual is disabled. (Id. at 19-28). The ALJ made the
following findings:
1. Plaintiff meets the insured status requirements of the Social Security Act
through December 31, 2015. (Id. at 21).
2. Plaintiff has not engaged in substantial gainful activity since February 1,
2013, the alleged onset date. (Id.).
3. Plaintiff has the following severe impairments: coronary artery disease,
diabetes mellitus, and status-port arthroscopy of the left knee with a
partial medial meniscectomy. (Id.).
4. Plaintiff 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. (Id. at 22).
5. Plaintiff has the residual functioning capacity (“RFC”) to perform
medium work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)
except that he can stand and/or walk at least two hours without
interruption and a total of at least six hours over the course of an eighthour workday; can sit at least six hours over the course of an eight-hour
work day; cannot climb ropes, poles, or scaffolds; can occasionally climb
ladders, ramps, and stairs; can frequently balance, stoop, kneel, and
crouch and occasionally crawl; can frequently work in humidity, wetness,
and extreme temperatures; can frequently work in dusts, gases, odors,
and fumes; cannot work in poorly ventilated areas; cannot work at
2

unprotected heights; can frequently work with operating hazardous
machinery and is not limited with operating motorized vehicles. (Id. at
23-24).
6. Plaintiff is capable of performing past relevant work as an outside sales
representative and a small business owner. This work does not require
the performance of work-related activities precluded by plaintiff’s RFC.
(Id. at 27).
7. Plaintiff has not been under a disability, as defined in the Social Security
Act, from February 1, 2013, through the date of his decision on February
25, 2016. (Id. at 28).
Plaintiff requested an appeal to the Appeals Council, which denied his
request for review on August 30, 2017. (Tr. 1). At that point, the ALJ’s decision
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 October 9,
2017. (Doc. 1).
II.

DISCUSSION
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
citation and quotation marks omitted). “This limited review precludes deciding the
3

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 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 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

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 September 3, 2015, the Court will apply
the regulations in place at that time.
4

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.
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 Contentions

Plaintiff asserts that the ALJ erred in three ways: (1) failing to articulate
5

good cause for giving little weight to the opinion of his treating physician, Dr.
Shawn Smith; (2) failing to properly consider his pain and other symptoms
pursuant to the Eleventh Circuit’s three-part pain standard; and (3) failing to deem
as severe plaintiff’s residual symptoms from his stroke. The Court will address
each contention in turn.
1.

Failure to articulate good cause for giving little weight to
the opinion of treating physician

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. 2004) (internal quotation marks and citation omitted). Good
cause exists when: (1) the treating physician’s opinion was not bolstered by the
evidence; (2) the evidence supported a contrary finding; or (3) the treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records. Id. at 1241. The ALJ must clearly articulate the reasons for affording less
weight to a treating physician’s opinions. Id.

The regulations state that a medical

opinion will be evaluated based on examining relationship, treatment relationship
(including length of treatment relationship and the frequency of examination and
nature/extent

of

treatment

relationship),

supportability,

consistency,

and

specialization, among other things. 20 C.F.R. § 404.1527, 416.927.
Here, the ALJ articulated good cause for giving little weight to the opinions
of Dr. Smith. First, the ALJ noted that Dr. Smith’s ultimate conclusion that
6

plaintiff was disabled and could not work goes to an issue reserved only for the
Commissioner. This is true. The Commissioner is the sole person responsible for
determining as, an administrative matter, whether a person is disabled. 20 C.F.R.
404.1527, 416.927 (“We are responsible for making the determination or decision
about whether you meet the statutory definition of disability. In so doing, we
review all of the medical findings and other evidence that support a medical
source's statement that you are disabled. A statement by a medical source that you
are ‘disabled’ or ‘unable to work’ does not mean that we will determine that you
are disabled.”); see also Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)
(“[W]e are concerned here with the doctors’ evaluations of Lewis's condition and
the medical consequences thereof, not their opinions of the legal consequences of
his condition.”). Consequently, it was appropriate for the ALJ to disregard Dr.
Smith’s conclusion with respect to this point.
Second, the ALJ noted that plaintiff was not treated by Dr. Smith between
December 2013 until the visit in September 2015, which was seemingly for the
purpose of evaluating disability.

The length and frequency of the treatment

relationship is relevant in evaluating a treating source’s opinion. See 20 C.F.R. §
404.1527, 416.927(c)(2)(i) (“Generally, the long a treating source has treated you
and the more times you have been seen by a treating source, the more weight we
will give to the source’s medical opinion.”). Dr. Smith opines in his September
7

2015 letter that plaintiff has had a “progressive increase in his cardiopulmonary
symptoms,” even though the record indicates that he last saw plaintiff in December
2013.

(Tr. 554, 680)

Furthermore, while the record indicates that plaintiff

possibly did not have insurance during this time (see Tr. 109), plaintiff does not
argue that he failed to see Dr. Smith during this gap due to lack of medical
insurance.

Additionally, while the Court recognizes that “poverty excuses

noncompliance,” Dawkins v. Bown, 848 F.2d 1211, 1213 (11th Cir. 1988), an ALJ
is “only required to determine whether the claimant is financially able to seek
ongoing treatment and fill prescriptions when noncompliance is the sole ground for
denial of disability benefits, and the record contains evidence that the claimant is
financially unable to seek treatment.” Cawley v. Astrue, No. 1:10-CV-538-TFM,
2011 WL 4435435, at *7 (M.D. Ala. Sept. 23, 2011) (emphasis in original); see
also Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (“[W]hen an ALJ
relies on noncompliance as the sole ground for the denial of disability benefits, and
the record contains evidence showing that the claimant is financially unable to
comply with prescribed treatment, the ALJ is required to determine whether the
claimant was able to afford the prescribed treatment.”). Here, the ALJ did not rely
on lack of medical treatment as the sole ground of denying plaintiff disability
benefits.
Third, the ALJ found that Dr. Smith’s opinion of complete and total disability
8

was inconsistent with plaintiff’s most recent office visit with treating cardiologist,
Dr. Michael Honan, who recommended a conservative regimen and advised
plaintiff to increase activity. (See Tr. 27, 666). An ALJ may consider the type of
treatment a claimant has received in evaluating a treating source’s opinion. See
Womble v. Comm'r of Soc. Sec., 705 F. App'x 923, 927 (11th Cir. 2017)
(“Specifically, Dr. Fine's opinion was not supported by his own treatment notes
given Womble's conservative and relatively infrequent treatment.”); see also see
Horowitz v. Comm'r of Soc. Sec., 688 F. App'x 855, 863 (11th Cir. 2017) (“ALJs
are permitted to consider the type of a treatment a claimant received in assessing
the credibility of her subjective complaints.”); Warbington v. Colvin, No. CIV.A.
13-00119-N, 2013 WL 6627015, at *8 (S.D. Ala. Dec. 17, 2013) (noting that a
course of conservative treatment may be used to discount a doctor’s assessment of
plaintiff as disabled) (collecting cases).
Finally, the ALJ found that there is no evidence of “end-stage coronary
disease” as mentioned by Dr. Smith in his September 2015 letter. Plaintiff argues
that the National Institute of Health refers to end-stage coronary artery disease as
“not amenable to surgical or Percutaneous revascularization.” (Doc. 10, p. 9).
Plaintiff further notes that, in October 2013, Dr. Jones stated that plaintiff “has
diffuse disease that is not amenable to complete revascularization.” (Tr. 548).
Even assuming that plaintiff has “end-stage coronary disease,” there is substantial
9

evidence to support the ALJ’s decision to give little weight to Dr. Smith’s
September 2015 opinion. This is because that opinion because does not specify
how this would prevent plaintiff from doing any work. And the ALJ already
deemed plaintiff’s coronary artery disease a severe impairment and took that
impairment and symptoms of same into account when formulating plaintiff’s RFC.
(Tr. 21, 24 [stating that he considered all symptoms to the extent they are
consistent with objective medical evidence and considered plaintiff’s limitations
and all medical evidence in the record]); cf. Diorio v. Heckler, 721 F.2d 726, 728
(11th Cir. 1983) (“We find that the ALJ made erroneous statements of fact, but we
conclude that this was harmless error in the context of this case and that the ALJ
applied the proper legal standard . . . .”). In short, the Court finds that the ALJ
articulated specific reasons for giving little weight to Dr. Smith’s conclusion that
plaintiff is unable to work, and therefore did not commit any reversible error in that
regard.
2.

Failure to properly consider plaintiff’s pain

Where a claimant attempts to establish disability, in part, based on subjective
complaints of pain and other symptoms, she 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
10

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
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.

11

Plaintiff appears to argue that the ALJ ignored plaintiff’s consistent reports
of chest pain, shortness of breath, and chest tightness, and that plaintiff should
have been found disabled based on these symptoms alone. But the ALJ did not
ignore these symptoms. The ALJ recounted plaintiff’s reports of those symptoms.
(Tr. 25-27).

The ALJ found, however, that while plaintiff’s medically

determinable impairments could reasonably be expected to cause the alleged
symptoms, plaintiff’s statements concerning the intensity persistence and limiting
effects of these symptoms were not entirely credible. (Id. at 24.) The ALJ then
explained his reasons for not entirely crediting those statements, including the fact
that plaintiff only reported limited symptoms after his alleged onset date, several
normal physical examinations, good tolerance of a heart catheterization, good
response to medication, encouragement to exercise and increase activity, overall
conservative treatment, and some gaps in medical treatment.

The ALJ also

considered – as one factor among many – plaintiff’s generally unpersuasive
appearance and demeanor at the hearing. The Court must not disturb the ALJ’s
credibility determination when that determination is supported by substantial
evidence, as it is here. See Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995)
(“A clearly articulated credibility finding with substantial supporting evidence in
the record will not be disturbed by a reviewing court.”); Dyer v. Barnhart, 395
F.3d 1206, 1212 (11th Cir. 2005) (“In sum, the ALJ considered Dyer's activities of
12

daily living, the frequency of his symptoms, and the types and dosages of his
medications, and concluded that Dyer's subjective complaints were inconsistent
with his testimony and the medical record. The ALJ thus adequately explained his
reasons and it was reversible error for the district court to hold otherwise.”).
Therefore, the Court finds no error in this regard either.
3.

Failure to consider the residual effects of stroke as severe

Plaintiff argues that that the ALJ erred by failing to denote plaintiff’s history
of ischemic stroke with history of left-sided sensory loss and numbing as a severe
impairment.
At Step Two in the five-step sequential analysis, a claimant’s impairment is
determined to be either severe or not severe. “Step two is a threshold inquiry.”
McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). “This step acts as a
filter; if no severe impairment is shown the claim is denied, but the finding of any
severe impairment, whether or not it qualifies as a disability and whether or not it
results from a single severe impairment or a combination of impairments that
together qualify as severe, is enough to satisfy the requirement of step two.”
Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). Thus, if an ALJ finds that
a claimant has at least one severe impairment – as the ALJ did here – he must
continue his analysis. See Cunningham v. Colvin, No. 2:14-CV-2182-RDP, 2016
WL 1117647, at *4 (N.D. Ala. Mar. 22, 2016) (“Thus, whether an ALJ determines
13

that one or all impairments meet the definition of ‘severe’ has no impact on the
ultimate analysis; so long as the ALJ finds just one impairment to be severe at Step
Two, all of a plaintiff's impairments will be considered in the ALJ's later analysis
of the remaining steps.”); (Tr. 21 [finding several severe impairments]). Therefore,
to the extent that the ALJ erred in failing to describe plaintiff’s history of ischemic
stroke and history of left-sided sensory loss and numbness as severe at Step Two,
that error was harmless. See Heatly v. Comm'r of Soc. Sec., 382 F. App'x 823,
824–25 (11th Cir. 2010) (“Even if the ALJ erred in not indicating whether chronic
pain syndrome was a severe impairment, the error was harmless because the ALJ
concluded that Heatly had a severe impairment: and that finding is all that step two
requires.”).
Furthermore, “[n]othing requires that the ALJ must identify, at step two, all
of the impairments that should be considered severe. Instead, at step three, the ALJ
is required to demonstrate that it has considered all of the claimant's impairments,
whether severe or not, in combination.” Id. (emphasis added). The ALJ did that
here. The ALJ went over plaintiff’s medical history, including evidence that he
suffered a stroke in August 2012; he also noted plaintiff’s reports of numbness and
tingling and left-sided paresthesias and numbness in September 2013 at different
appointments. (Id. at 25). The Court also notes records from April, June, and July
2014 note tingling on the left side along with reduced sensitivity to heat and cold.
14

(Id. at 658, 666-67). Plaintiff also testified at the hearing that he has tingling and
numbness on his left side, that his right eye droops, and that he has blurred vision
as a result of the stroke. (Id. at 101).
“On review, this Court need address only whether the ALJ properly
considered the combined effects of [plaintiff’s] impairments—both ‘severe’ and
‘non-severe’—in reaching his disability determination.” Grays v. Colvin, No.
5:13-CV-818-LSC, 2015 WL 260845, at *4 (N.D. Ala. Jan. 21, 2015). In finding
plaintiff not disabled, the ALJ stated that he had “considered the functional
limitations resulting from all of the claimant’s medically determinable
impairments, including those that are nonsevere.” (Tr. 22) (emphasis added).
The ALJ further stated that he had considered all symptoms and the extent to
which those symptoms could reasonably be accepted as consistent with the
objective medical evidence and other evidence. (Id. at 24). The Eleventh Circuit
has held that language like this is sufficient to show that the ALJ properly
considered all alleged impairments when making a disability determination. See
Wheeler v. Heckler, 784 F.2d 1073, 1076 (11th Cir. 1986) (finding that an ALJ
clearly considered the combination of impairments at issue when he stated that
“based upon a thorough consideration of all evidence . . . the appellant is not
suffering from any impairments, or a combination of impairments . . . to prevent
him from engaging in any substantial gainful activity”); see also Heatly v. Comm’r
15

of Soc. Sec., 382 F. App’x 823, 825 (11th Cir. 2010) ( finding that a simple
expression of the ALJ’s consideration of the combination of impairments
constitutes a sufficient statement of such findings) (citing Jones v. Health and
Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991)).
Finally, plaintiff has failed to show how his history of ischemic stroke and
reported residual symptoms prevent him from being able to work at all. Cf.
CHARLES HODGES, IV, Plaintiff, v. NANCY A. BERRYHILL, Acting Comm'r of
Soc. Sec., Defendant., No. 1:16-CV-258-WTH-GRJ, 2017 WL 7734639, at *6
(N.D. Fla. June 15, 2017), report and recommendation adopted sub nom. Hodges
v. Berryhill, No. 116CV00258WTHGRJ, 2018 WL 992035 (N.D. Fla. Feb. 20,
2018) (noting that plaintiff failed to demonstrate that he had any functional
limitations as a result of a stroke that prohibited him from substantial gainful
activity and that the mere existence of impairments do not reveal the extent to
which they limit plaintiff’s ability to work); Cunningham v. Colvin, No. 2:14-CV2182-RDP, 2016 WL 1117647, at *5 (N.D. Ala. Mar. 22, 2016) (finding that
plaintiff had done nothing to establish limitations incident to her stroke). As the
Court noted in the previous section, there is substantial evidence to support the
ALJ’s decision to not fully credit plaintiff’s statements concerning the intensity,
persistence, and limiting effects of his symptoms from his various impairments,
both severe and non-severe. The Court will not rehash that discussion here. In
16

sum, the ALJ considered the combination of all plaintiff’s impairments – to the
extent that he found the symptoms thereof credible – and therefore did not commit
reversible error.
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 and ORDERED this January 17, 2019.

_________________________________
LILES C. BURKE
UNITED STATES DISTRICT JUDGE

17