McQuiston v. Social Security Administration, Commissioner

Filing 22

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 9/25/17. (MRR, )

FILED
2017 Sep-25 PM 02:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JOSIE ANN McQUISTON,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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Case No. 5:16-cv-1105-TMP

MEMORANDUM OPINION
I. Introduction
The plaintiff, Josie Ann McQuiston, appeals from the decision of the
Commissioner of the Social Security Administration (“Commissioner”)1 denying
her application for disability insurance benefits (“DIB”) and supplemental security
income (“SSI”). She alleged disability with an onset date of September 1, 2009,
but later requested a closed period of disability from May 17, 2011, until August 5,

1

The defendant has asserted, and the court takes judicial notice, that the Acting
Commissioner for the United States Social Security Administration is, as of the date of this order,
Nancy A. Berryhill.
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2014. Ms. McQuiston timely pursued and exhausted her administrative remedies,
and the decision of the Commissioner is ripe for review pursuant to 42 U.S.C.
'' 405(g), 1383(c)(3).

The parties have consented to the full dispositive

jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. ' 626(c).
Ms. McQuiston was 39 years old at the time of the Administrative Law
Judge’s (“ALJ”) decision, and she has an eighth-grade education, which included
special education classes for math and reading. (Tr. at 39-40). Her past work
experience was as a cleaner and as an employee in a fast-food restaurant. (Tr. at
20). Ms. McQuiston claims that she was disabled from May 17, 2011, until August
5, 2014, because of recurrent staphylococcus (“staph”) infections. (Tr. at 33).2
The medical evidence submitted to the ALJ indicates that Ms. McQuiston received
treatment for her staph infections, which plaintiff describes as “Rare
Staphylococcus Aureus that is oxacillin resistant.” (Doc. 13, pp. 1-2).

2

Plaintiff had alleged disability based on anxiety, pelvic inflammatory disease,
headaches, and chronic staph infections, but only the issue of the closed period that coincides
with her recurrent staph infections has been raised in this appeal. Accordingly, the ALJ’s finding
that the plaintiff had “severe,” but not disabling, anxiety is not at issue, and any arguments as to
any other disabling condition have been waived.
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When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
'' 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. '' 404.1520(a)(4)(i), 416.920(a)(4)(i). If
he or she is, the claimant is not disabled and the evaluation stops. Id. If she is not,
the Commissioner next considers the effect of all of the claimant’s physical and
mental impairments combined. 20 C.F.R. '' 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
These impairments must be severe and must meet the durational requirements
before a claimant will be found to be disabled. Id. The decision depends upon the
medical evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir.
1971). If the claimant’s impairments are not severe, the analysis stops. 20 C.F.R.
'' 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step
three, which is a determination of whether the claimant’s impairments meet or
equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. 20 C.F.R. '' 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s
impairments fall within this category, she will be found disabled without further
consideration. Id. If they do not, a determination of the claimant=s residual
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functional capacity (ARFC@) will be made, and the analysis proceeds to the fourth
step. 20 C.F.R. '' 404.1520(e), 416.920(e). Residual functional capacity is an
assessment, based on all relevant evidence, of a claimant=s remaining ability to do
work despite her impairments. 20 C.F.R. ' 404.1545(a).
The fourth step requires a determination of whether the claimant=s
impairments prevent her from returning to past relevant work.
'' 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

20 C.F.R.

If the claimant can still do her past

relevant work, the claimant is not disabled and the evaluation stops. Id. If the
claimant cannot do past relevant work, then the analysis proceeds to the fifth step.
Id. Step five requires the court to consider the claimant’s RFC, as well as the
claimant’s age, education, and past work experience, in order to determine if he or
she can do other work. 20 C.F.R. '' 404.1520(a)(4)(v), 416.920(a)(4)(v). If the
claimant can do other work, the claimant is not disabled. Id. The burden of
demonstrating that other jobs exist which the claimant can perform is on the
Commissioner; and, once that burden is met, the claimant must prove her inability
to perform those jobs in order to be found to be disabled. Jones v. Apfel, 190 F.3d
1224, 1228 (11th Cir. 1999).

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Applying the sequential evaluation process, the ALJ found that Ms.
McQuiston has not been under a disability within the meaning of the Social
Security Act from the date of onset through the date of her decision. (Tr. at 22-23).
She first determined that Ms. McQuiston met the insured status requirements of the
Social Security Act through March 31, 2014. (Tr. at 14). She next found that she
has not engaged in substantial gainful activity since September 1, 2009, the alleged
onset date. Id. According to the ALJ, the plaintiff=s recurring staph infection and
anxiety are considered “severe” based on the requirements set forth in the
regulations. (Tr. at 15). However, she found that these impairments neither meet
nor medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Id. The ALJ determined that Ms. McQuiston’s statements concerning
the intensity, persistence, and limiting effects of her symptoms were “not entirely
credible” (Tr. at 20), and she determined that the plaintiff has the ability to perform
a range of light, unskilled work, but that she should not work in the food industry
or the medical field because of the possibility of transmitting the infection, and
because of the risk of causing her drug dependence to recur. (Tr. at 19).
Moving on to the fourth step of the analysis, the ALJ concluded that Ms.
McQuiston is unable to perform her past relevant work as a fast food worker (Tr.

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at 20). The ALJ considered the testimony of a vocational expert (“VE”), and
determined that, considering the claimant’s age, education, work experience, and
RFC, there are jobs that exist in significant numbers in the national economy that
the claimant can perform, including work as a garment sorter, a ticket marker, and
a product assembler. (Tr. at 21). The ALJ concluded her findings by stating that
Plaintiff is not disabled under Section 1520(f) of the Social Security Act. (Tr. at
22).
II. Standard of Review
This court’s role in reviewing claims brought under the Social Security Act
is a narrow one. The scope of its review is limited to determining (1) whether
there is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284
F.3d 1219, 1221 (11th Cir. 2002). Substantial evidence is “more than a scintilla
and is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Crawford v. Commissioner of Soc. Sec., 363 F.3d 1155,
1158 (11th Cir. 2004), quoting Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th
Cir. 1997). The court approaches the factual findings of the Commissioner with

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deference, but applies close scrutiny to the legal conclusions. See Miles v. Chater,
84 F.3d 1397, 1400 (11th Cir. 1996). The court may not decide facts, weigh
evidence, or substitute its judgment for that of the Commissioner. Id. “The
substantial evidence standard permits administrative decision makers to act with
considerable latitude, and ‘the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding from being
supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th
Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm=n, 383
U.S. 607, 620 (1966)).

Indeed, even if this Court finds that the evidence

preponderates against the Commissioner’s decision, the Court must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400. No decision
is automatic, however, for “despite this deferential standard [for review of claims]
it is imperative that the Court scrutinize the record in its entirety to determine the
reasonableness of the decision reached.” Bridges v. Bowen, 815 F.2d 622, 624
(11th Cir. 1987). Moreover, failure to apply the correct legal standards is grounds
for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).

III. Discussion

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Ms. McQuiston alleges that the ALJ’s decision should be reversed and
remanded because the ALJ improperly failed to credit the plaintiff’s testimony
regarding her pain during active staph infections, and failed to consider her request
for a closed period of disability. 3

(Doc. 13). The Commissioner has responded

that the ALJ=s decision is based on substantial evidence and is due to be affirmed.
A brief discussion of the plaintiff=s medical history is necessary in order to
put the ALJ=s decision into context. Ms. McQuiston asserts that she contracted the
staph infection during her first incarceration in 2007. 4 After her release from
prison in 2009, she first sought treatment for the staph infection at the emergency
room of Huntsville Hospital on February 8, 2011, complaining of a burning arm
pain that had begun four days earlier. She was noted to have a “small abscess size
of dime under right armpit” [sic] with no fever. (Tr. at 583). The abscess was
3

The argument that the ALJ failed to consider the closed period of disability is both
without merit because the ALJ specifically acknowledged the claimant’s request for a period of
closed disability (Tr. at 12), and without any basis in law because the ALJ determined that the
claimant was not disabled at any time from her alleged onset date until her administrative
hearing. See, e.g., Jones v. Commissioner of Soc. Sec., 181 Fed. App=x 767, 773 (11th Cir.
2006).
4

Ms. McQuiston testified at her second hearing that she initially contracted the
staph infection when she was in Tutwiler prison in 2007, but she also testified that she contracted
the infection in Madison or Clay County jails in 2006. (Tr. at 46, 78). However, there have
been no jail or prison medical records produced that show any such infection treated or
complained of during her incarceration. The first time the infection is noted in the medical
records that have been made part of the record was four years later, in February 2011.
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incised and drained, and covered with a band-aid. She was then discharged with
antibiotics and pain medication, and she was warned to watch for signs of
infection. (Tr. at 584).
Her next treatment for a staph infection was May 14, 2011, which coincides
with her onset date for the closed period of disability at issue here. Ms. McQuiston
went to Huntsville Hospital ER and was assessed with a minor abscess on her
abdomen that had been present for two days. She reported that her pain was at a
level of 10 on a scale of 1 to 10. The doctor preformed an incision and drainage,
and Ms. McQuiston was discharged with pain medication. (Tr. at 477-84).

She

returned on May 17, 2011, complaining that the pain had worsened, and the
abscess was again incised and drained and she was given a prescription for
additional pain medication. (Tr. at 463-70).
Ms. McQuiston received treatment at the Huntsville Hospital ER for another
minor abscess on July 22, 2011, which she reported had lasted three days. This
abscess was on her arm. An incision and drainage was performed. (Tr. at 451-57).
Another minor abscess in the right axilla (armpit) was similarly treated on
September 23, 2011. (Tr. at 423-30).

She returned to the ER on December 9,

2011, for an abscess on her left forearm, which also was treated with incision and

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drainage. (Tr. at 476-85). On December 26, 2011, she returned for treatment of an
abscess on her lower eyelids. She was discharged with pain medication and an
antibiotic eye ointment. (Tr. at 452-58).
Ms. McQuiston=s next visit to the hospital for treatment of a staph infection
was on October 1, 2012, over nine months later, when she had an abscess under her
left eye. She was given antibiotics and pain medication, and the abscess was
incised and drained. (Tr. at 759-67). She returned the next day, reporting that the
abscess had worsened, and she was treated with intravenous injections of
antibiotics. (Tr. at 714-46). On November 2, 2012, she was treated for a cough,
and for two small abscesses which were deemed “not ready” for incision and
drainage. (Tr. at 784-90).
Ms. McQuiston next went to the emergency room on December 8, 2013, for
an abscess, but she left the hospital before being treated by a physician. (Tr. at
873-76). She returned on December 12, 2013, complaining of an abscess on her
right arm, and was treated with an incision and drainage. (Tr. at 898).
The next time Ms. McQuiston sought treatment for her staph infection was
on July 10, 2014, seven months later, where it was observed that she was in
“obvious mild-moderate discomfort” from abscess to her left cheek and right

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eyebrow. (Tr. at 961). She was treated with incision and drainage. (Tr. at 966).
She returned four days later, with complaints regarding the abscesses on her face,
and was also treated for an abscess on her left leg. (Tr. at 914). She was triaged at
3:54 p.m., and a urine specimen was collected. She still had not been treated at
about 6:30 p.m., when she became “agitated” and “rude”; she was escorted out of
the hospital by security staff at no later than 7:35 p.m. without further evaluation.
(Tr. at 917).
She was admitted to Crestwood Medical Center on July 15, 2014, for
treatment of cellulitis around both eyes. (Tr. at 994). She was found to have
symptoms that were “moderate” “at their worst,” and in “no acute distress.” (Id.)
She reported her pain level was at a level of 10 on a scale of 1 to 10. (Tr. at 997).
An incision and drainage was performed on July 16, 2014, and the doctor reported
that the cellulitis was “almost completely resolved.” She was given intravenous
antibiotics and was advised to cut her nails, being told that the nails were “the most
likely factor” for transmission of the staph infection. (Tr. at 999). She was
discharged on July 19, 2014. (Id.)

About two weeks later she visited the Central

North Alabama Health Services clinic, complaining of “staph.” (Tr. at 1117). It

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appears that she received additional antibiotics, although the medical records are
difficult to decipher.
Subjective testimony of pain and other symptoms may establish the presence
of a disabling impairment if it is supported by medical evidence. See Foote v.
Chater, 67 F.3d 1553, 1561 (11th Cir. 1995). To establish disability based upon
pain and other subjective symptoms, “[t]he pain standard requires (1) evidence of
an underlying medical condition and either (2) objective medical evidence that
confirms the severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it can be
reasonably expected to give rise to the alleged pain.” Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005) (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.
1991)); see also Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986).
The ALJ is permitted to discredit the claimant’s subjective testimony of pain
and other symptoms if she articulates explicit and adequate reasons for doing so.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also Soc. Sec. Rul.
96-7p, 1996 WL 374186 (1996) (“[T]he adjudicator must carefully consider the
individual’s statements about symptoms with the rest of the relevant evidence in
the case record in reaching a conclusion about the credibility of the individual’s

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statements.”). Although the Eleventh Circuit does not require explicit findings as
to credibility, “‘the implication must be obvious to the reviewing court.’” Dyer,
395 F.3d at 1210 (quoting Foote, 67 F.3d at 1562).

“[P]articular phrases or

formulations” do not have to be cited in an ALJ’s credibility determination, but it
cannot be a “broad rejection” which is “not enough to enable [the district court or
this Court] to conclude that [the ALJ] considered her medical condition as a
whole.” Id. (internal quotations omitted).
In this case, the ALJ specifically stated that plaintiff’s staph infection was a
severe impairment. The ALJ further explicitly acknowledged that plaintiff was
seeking a closed period of disability. However, a careful review of the medical
records relating to that closed period indicates that the ALJ’s decision is based on
substantial evidence.
The plaintiff alleges the onset date of the closed period as May 17, 2011.
After that date, she has no medical records relating to the impairment of the staph
infection until July 22, 2011, when she complained that the abscess had occurred
for three days. She was treated and did not seek any further treatment until another
outbreak 60 days later, in late September of 2011, when she complained that the
outbreak had been bothering her for two days. She was treated more than two

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months later, on December 9, 2011, and again on December 26, 2011. On virtually
every visit to the emergency room, Ms. McQuiston was noted to be in “no acute
distress” and mild discomfort or “no obvious discomfort.” (See, e.g., Tr. at 425).
The medical records uniformly describe these abscesses as “minor,” usually an
inch or smaller in size. While she sometimes rated her own pain as incredibly
intense—a 10 of 10—there were never any objective findings that supported her
report. It is further worthy of note that although the ER physicians frequently
recommended that Ms. McQuiston follow up at the free clinic, there are no records
indicating that she did so, which supports the ALJ’s finding that her assertions
regarding the pain and disabling effects of the infection were not entirely credible.
After the December 2011 treatment, Ms. McQuiston apparently was
symptom-free for more than nine months. She first sought treatment in 2012 in
October. She then sought treatment only one other time in 2012, in November, and
the records indicate that the abscess was not so severe as to require an incision and
drainage. At the November 2012 visit the plaintiff was complaining of a cough,
apparently unrelated to the staph infection. Ms. McQuiston apparently remained
free of any outbreaks of the staph infection for the next 13 months. She was

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treated only once in 2013, in December, and then went for about seven months
before her next outbreak in July 2014.5
None of the medical records reflect that any discomfort caused by the staph
infection would render Ms. McQuiston unable to work. None of the medical
records reflect any notation that the plaintiff should not work or should be isolated
from other people. To support her argument that she could not work because she
needed to be isolated due to the contagious nature of a staph infection, the plaintiff
relies primarily on reference to and a quotation from The Merck Manual of
Diagnosis and Therapy (17th ed. 1999), which reports that “infected patients
should be isolated from other susceptible patients and hospital personnel.” As the
Commissioner points out in her response, the medical text cited refers to the
standard of care for patients in a medical facility. There is no evidence in the
record that indicates that Ms. McQuiston was ever told, or that any doctor did or
should have recommended, that she be “isolated” and kept from the workplace or
from other people. Even if the plaintiff required some sort of isolation during her

5

The ALJ did not explicitly find, and the Commissioner does not make the
argument, that the staph infection does not meet the durational requirement that the impairment
Ahas lasted or can be expected to last for a continuous period of not less than twelve months,@ but
it appears that the duration of the disabling aspect of the infection never lasted more than, at the
most, about seven months during 2011. 42 U.S.C. '' 416(i), 423(d)(1)(A).
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hospitalizations or outbreaks, the brief and episodic nature of those incidents does
not support a finding that the plaintiff was disabled, even for the closed period of
disability. During that approximate four-year period, it is undisputed that Ms.
McQuiston suffered no outbreak at all for one seven-month period, and for another
period of 13 months.
Having considered the ALJ’s opinion and all of the evidence presented, the
court finds that the ALJ’s decision is supported by on substantial evidence and
employed the proper legal standard.

Accordingly, the decision is due to be

affirmed.
IV. Conclusion
Upon review of the administrative record, and considering all of Ms.
McQuiston=s arguments, the undersigned Magistrate Judge finds that the
Commissioner=s decision is

supported by substantial evidence; therefore, the

decision is AFFIRMED. A separate Order will be entered.
DATED the 25th day of September, 2017.

_______________________________

T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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