Miller v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION AND ORDER that the final decision of the Commissioner is AFFIRMED as more fully set out in order. Signed by Judge Liles C Burke on 12/14/2018. (AHI )

FILED
2018 Dec-14 PM 01:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
SHARON MILLER,
Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,

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Case No.: 5:17-cv-00978-LCB

Defendant.
MEMORANDUM OPINION AND ORDER
On June 9, 2017, Plaintiff, Sharon Miller, 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 December 1, 2017, Plaintiff filed a brief in support (Doc. 11). On January 2,
2018, the Commissioner filed a Memorandum in Support (Doc. 12). Therefore,
this matter is ripe for review. For the reasons stated below, the final decision of
the Commissioner is affirmed.
I.

BACKGROUND
On August 14, 2014, Plaintiff filed application for benefits under Title II and

Title XVI of the Social Security Act alleging February 9, 2013, as her onset of
disability. On February 18, 2016, the administrative law judge (“ALJ”), Patrick R.

Digby, conducted a hearing in Cullman, Alabama. (Tr. 16). Plaintiff, her attorney,
and a vocational expert (“VE”) were present at the hearing. (Id.). On May 4,
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 16-28). The ALJ made the following
findings:
1. Plaintiff meets the insured status requirements of the Social Security Act
through December 31, 2015, but not thereafter. (Id. at 18).
2. Plaintiff has not engaged in substantial gainful activity since February 9,
2013, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et
seq.). (Id.).
3. Plaintiff has the following severe impairments: osteoarthritis of the right
and left knee, cervical disc disease, and obesity (20 CFR 404.1520(c) and
416.920(c)). (Id. at 19).
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 (20 CFR 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (Id. at 22).
5. Plaintiff has the residual functioning capacity (“RFC”) to perform light
work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that
the claimant can occasionally lift and carry twenty pounds and frequently
ten pounds. She can stand and/or walk for six hours in an eight­hour
workday, and sit for six hours in an eight-hour workday. The claimant
can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps
and stairs. She cannot work on or around ladders, ropes, or scaffolds,
dangerous machinery, and unprotected heights. (Id. at 22).
6. The claimant is unable to perform her past relevant work as a
housekeeper due to her RFC. (Id. at 27).
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7. The claimant was born on March 28, 1967 and was 45 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset
date (20 CFR 404.1563 and 416.963). (Id.).
8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964). (Id.).
9. Transferability of job skills is not an issue in this case because the
claimant's past relevant work is unskilled (20 CFR 404.1568 and
416.968). (Id.).
10.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 (20 CFR 404.1569, 404.1569(a), 416.969,
and 416.969(a)). (Id.).
11.The claimant has not been under a disability, as defined in the Social
Security Act, from February 9, 2013, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)). (Id. at 28).
Plaintiff requested an appeal to the Appeals Council, which denied her
request for review on August 14, 2014. (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 June 9,
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
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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
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

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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 May 4, 2016, the Court will apply the
regulations in place at that time.
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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.
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
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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 her complaint that the ALJ’s finding of not disabled is
erroneous for the following reasons:
1. The finding of the ALJ that the Plaintiff was not disabled was not based
upon substantial evidence;
2. The findings of fact were not sufficient to resolve the crucial legal issues;
and
3. The correct legal standards were not applied in determining the ultimate
issue. (Doc 1, p. 2).
The crux of Plaintiff’s argument is that the ALJ failed to properly evaluate the
credibility of the Plaintiff’s complaints of pain. Central to this issue is the ALJ’s
determination that:
. . . claimant’s medically determinable impairments could reasonably
be expected to cause the alleged 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. While the allegations regarding the nature of these
symptoms are found to be supported within the medical evidence in
the file, the contentions regarding the severity of, and the related
functional restrictions, are not fully supported.

(Tr. 23). In her brief, Plaintiff asserts that the ALJ failed to articulate the reasons
for his decision. (Doc. 11, p. 4). In addition, Plaintiff argues that the ALJ only
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considered isolated treatment records and failed to properly consider the entire
medical record. (Id. at p. 6). The Court disagrees.
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
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).
In the case at bar, the ALJ considered the evidence of the case as a whole. In
doing so, the ALJ pointed out numerous instances where Plaintiff’s testimony
regarding the claimed intensity and persistence of her alleged symptoms was
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inconsistent with her level of functioning.

For example, the ALJ noted that

Plaintiff submitted a function report on September 2, 2014, describing her daily
activities as primary custodian for her 4-year old grandson, assisting her mother
(who is disabled) with daily activities, driving, cooking, cleaning, doing laundry,
bathing, grocery shopping, and sufficiently handling her activities of daily living
and finances, all without assistance. (Tr. 23, 261-68). During her testimony at the
social security hearing, Plaintiff confirmed these activities, but sought to downplay
her level of participation to the point that her testimony became questionable and
unreliable. For instance, during the hearing Plaintiff testified that she had been
primary custodian of her grandson for the past two years; that she had never taken
him to a park or a movie; that she never dressed him or helped him get ready for
school; that she never bathed him; and that she never carried or lifted him. (Tr. 3375).

Plaintiff also testified that she drives about 20 miles a week; that she

provides care for her mother by driving to get her medication; she drives to her
grandson’s school; and drove to the social security hearing. (Tr. 26, 33-75).2 In
sum, the ALJ found that her level of participation in the aforementioned activities
is inconsistent with her testimony at the hearing that she could hardly walk because
of back and knee pain (at a level of 8 out of 10) and that she must lie down for 6-7

2

The ALJ notes that “[d]riving is consistent with the ability to perform sequential postural maneuvers to enter and
exit a vehicle, with good use of both hands, with operating some hand and foot controls, with good ability to
maintain attention and concentration and with the ability to exercise judgment.” (Tr. 26).

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hours a day. (Tr. 25, 47).3
Further, the ALJ supported his findings with substantial evidence by citing
numerous instances where the medical evidence did not support her testimony.
Plaintiff claims to have difficulty walking; however, medical evidence regarding
treatment for her knees showed successful surgery and physical therapy; that she
was ambulating without an assistive device; and that she had a steady gait on
numerous occasions. (Tr. 23, 24, 413-15, 528-43, 581, 594). Plaintiff complained
of severe pain as a result of degenerative disc disease and severe stenosis in her
neck; however, medical records from her local medical clinic showed that she was
treated conservatively and that her condition was stable and without pain. (Tr.
527-47). Last, Plaintiff alleged difficulty using her hands and/or holding things;
however, the ALJ found that: “. . .she smoked cigarettes up to a few weeks prior
to the hearing and used a cigarette lighter. She can dress and tie her shoes, she can
cook and drive all of which require good dexterity of the hands. She was described
as having only a ‘mild’ decrease in grip strength. . .” (Tr. 26, 422-27).
Finally, contrary to Plaintiff’s assertions, the ALJ did consider the
longitudinal treatment record, as noted above. The ALJ did not, as Plaintiff argues,
3

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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pick and choose records to support his conclusion; rather a review of the relevant
medical records supports the ALJ’s conclusion that, while there are medical
conditions that would contribute to pain it is not to the degree or extent that
Plaintiff alleges. The fact that Plaintiff can point to other evidence supporting her
allegations of disabling pain does not mean that the ALJ’s credibility determination
was not supported by substantial evidence. 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 December 14, 2018.

_________________________________
LILES C. BURKE
UNITED STATES DISTRICT JUDGE

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