Phillips v. Social Security Administration, Commissioner
Filing
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MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 2/16/2018. (KBB)
FILED
2018 Feb-16 PM 03:18
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
MELISSA DENISE PHILLIPS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.
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Civil Action Number
5:16-cv-1565-AKK
MEMORANDUM OPINION
Melissa Denise Phillips brings this action pursuant to Section 405(g) of the
Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review of the final
adverse decision of the Commissioner of the Social Security Administration
(“SSA”). On January 11, 2018, the magistrate judge to whom the case is referred
entered a Report and Recommendation recommending that the court affirm the
Commissioner’s decision. Doc. 13. Phillips has now filed timely objections to the
magistrate judge’s report and recommendation. Doc. 14.
Having reviewed Phillips’ objections, the previous briefing in this case, and
the magistrate judge’s Report and Recommendation, the court notes that much of
Phillips’ objection repeats the arguments from her earlier briefs verbatim. As the
magistrate judge’s Report and Recommendation adequately addresses these
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contentions, the court will not reiterate the magistrate judge’s legal reasoning, but
address only those portions of Phillips’ objection that raise new issues.
Phillips contends that the magistrate judge should have found that the ALJ
erred by relying on Dr. Levine’s testimony that Phillips did not have ankylosing
spondylitis, because this testimony is allegedly contradicted by the medical record.
Doc. 14 at 2-4. Specifically, Phillips points to Dr. Sammons’ notes from a 2012
visit, which state that “[w]e saw [Phillips] back in 2010 and found ankylosing
spondylitis with pain” and that “[s]he has findings consistent with ankylosing
spondylitis . . . [,]” as being inconsistent with the magistrate judge’s finding that
Dr. Sammons never diagnosed Phillips with ankylosing spondylitis. Id. at 3-4.
However, the magistrate judge noted that the Dr. Sammons’ 2012 statement that he
had previously diagnosed Phillips with ankylosing spondylitis was contradicted by
Dr. Sammons’ contemporaneous notes from the 2010, which state that Phillips’
symptoms were only “possibly consistent with ankylosing spondylitis[.]” Doc. 13
at 7. The magistrate judge correctly concluded that Dr. Sammons had never made a
definitive diagnosis of ankylosing spondylitis, but only provided “an equivocal
potential diagnosis.” Id. at 10-11. Thus, Dr. Levine’s testimony that Phillips does
not have ankylosing spondylitis is not contradicted by the medical record, and this
objection does not support rejecting the magistrate judge’s report and
recommendation.
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Phillips next contends that the magistrate judge erred in finding that the
ALJ’s rejection of Phillips’ pain testimony was supported by the fact that “there is
no objective evidence supporting muscle spasms causing kyphosis” because
kyphosis is caused by fixation of the spine, rather than muscle spasms. Doc. 14 at
17-19. However, this objection takes the magistrate judge’s finding out of context.
Taken in full, the magistrate judge found that “[o]bjective evidence of kyphosis
does not undermine the ALJ’s conclusion that there is no objective evidence
supporting muscle spasms causing that kyphosis.” Doc. 13 at 18-19. Thus, the
medical cause of kyphosis is irrelevant to the magistrate judge’s conclusion;
instead, it is the lack of objective evidence that Phillips suffers from muscle
spasms that supports the ALJ’s decision not to credit Phillips’ pain testimony. See
id. Accordingly, this objection does not support rejecting the magistrate judge’s
Report and Recommendation.
Based on the foregoing, the court hereby ADOPTS the report of the
magistrate judge. The court further ACCEPTS the recommendation of the
magistrate judge that the decision of the Commissioner be affirmed.
A separate order in conformity with this Memorandum Opinion will be
entered contemporaneously herewith.
DONE the 16th day of February, 2018.
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ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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