Pannell v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 1/23/2019. (AFS)

FILED
2019 Jan-23 PM 01:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
LIBBIE KAY PANNELL,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Civil Action Number
5:18-cv-00246-AKK

MEMORANDUM OPINION
Libbie Kay Pannell brings this action pursuant to Section 405(g) of the
Social Security Act, 42 U.S.C. § 405(g), seeking review of the Administrative Law
Judge’s (“ALJ’s”) denial of disability insurance benefits, which has become the
final decision of the Commissioner of the Social Security Administration (“SSA”).
For the reasons explained below, the court finds that the ALJ applied the correct
legal standard and that her decision—which has become the final decision of the
Commissioner—is supported by substantial evidence. Therefore, the court affirms
the decision denying benefits.
I. Procedural History
Pannell filed an application for a period of disability, disability insurance
benefits, and supplemental security income on November 27, 2012, alleging that

she suffered from a disability, beginning September 29, 2012 due to back and neck
pain, depression, and anxiety. R. 125, 286, 293. After the SSA denied her
applications, R. 188-93, Pannell requested a hearing before an ALJ, R. 203.
Following an initial hearing, the ALJ entered an unfavorable decision. R. 161-80.
The SSA Appeals Council granted Pannell’s request for review, vacated the ALJ’s
decision, and remanded the case for further action. R. 181-84. Ultimately, after a
second hearing, the ALJ entered an unfavorable decision finding that Pannell was
not disabled. R. 8-23. The SSA Appeals Council denied Pannell’s second request
for review, rendering the ALJ’s decision the final decision of the Commissioner.
R. 2. Having exhausted her administrative remedies, Pannell timely filed this
petition for review pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
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evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “‘reasonable
and supported by substantial evidence.’” Id. (quoting Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “‘[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.’” Martin, 894 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239). If supported by substantial evidence, the
court must affirm the Commissioner’s factual findings even if the preponderance
of the evidence is against those findings. See id. While judicial review of the
ALJ’s findings is limited in scope, it “does not yield automatic affirmance.” Lamb,
847 F.2d at 701.
In contrast to the deferential review accorded the Commissioner’s factual
findings, “conclusions of law, including applicable review standards, are not
presumed valid” and are subject to de novo review. Martin, 894 F.2d at 1529. The
Commissioner’s failure to “apply the correct legal standards or to provide the
reviewing court with sufficient basis for a determination that proper legal
principles have been followed” requires reversal. Id.

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III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show the “inability to
engage in 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 twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i)(1). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Social Security Act requires a five-step
analysis. 20 C.F.R. § 404.1520(a). Specifically, the ALJ must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

See McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
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than step three, leads to a determination of ‘not disabled.’” Id. (citing 20 C.F.R.
§ 416.920(a)-(f)). “Once [a] finding is made that a claimant cannot return to prior
work the burden of proof shifts to the Secretary to show other work the claimant
can do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). However, the
claimant ultimately bears the burden of proving that she is disabled, and,
“consequently [s]he is responsible for producing evidence in support of he[r]
claim.” See, e.g., Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citing
20 C.F.R. § 416.945(a), (c)).
IV. The ALJ’s Decision
Applying the five-step analysis, the ALJ found that Pannell satisfied step
one because she had “not engaged in substantial gainful activity since September
29, 2012, the alleged onset date” of her disability. R. 14. The ALJ proceeded to
step two, finding that Pannell had the severe impairments of degenerative disc
disease, anxiety, and depression.

Id.

At step three, the ALJ concluded that

Pannell’s impairments did not “meet[] or equal[] the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 . . . .” R. 16. Next, the
ALJ determined Pannell’s residual functional capacity (“RFC”), finding that:
[Pannell] has the [RFC] to perform light work . . . except that she
must be afforded the option to sit or stand during the workday at the
workstation. She [] can perform frequent postural maneuvers except
no climbing of ropes, ladders, or scaffolds. She would need to avoid
dangerous moving unguarded machinery and unprotected heights.
She can understand, remember, and apply simple instructions and
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tasks. She is limited to jobs involving infrequent and well-explained
workplace changes. She would be able to concentrate and remain on
task for two hours at a time sufficient to complete an eight-hour
workday. She is limited to occasional interaction with the general
public.
R. 17. Based on Pannell’s RFC, and relying on the testimony of a Vocational
Expert (“VE”), the ALJ found at step four that Pannell “is unable to perform any
past relevant work.” R. 21. The ALJ then proceeded to step five, where based on
Pannell’s RFC, age, prior work experience, and the VE’s testimony, the ALJ
concluded that “jobs that exist in significant numbers in the national economy that
[Pannell] can perform,” including wire worker, hand packer, and laundry worker.
R. 21-22. Therefore, the ALJ concluded that Pannell was not disabled from the
alleged onset date through the date of her decision. R. 22.
V. Analysis
Pannell argues that the ALJ erred by giving only limited weight to the
opinion of her treating physician while giving great weight to the opinion of a nonexamining physician. Doc. 10 at 3-6. For the reasons discussed below, the court
finds that substantial evidence supports the ALJ’s decision and that the decision is
due to be affirmed.
A.

Whether the ALJ erred by giving limited weight to the opinion of
Pannell’s treating physician

Pannell first argues that the ALJ failed to properly weigh the opinion of her
treating physician, Dr. Younus M. Ismail. Doc. 10 at 3-5. The ALJ must give
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“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.
2003) (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). “Good
cause exists ‘when []: (1) [the] treating physician’s opinion was not bolstered by
the evidence; (2) evidence supported a contrary finding; or (3) [the] treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.’” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011)
(quoting Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004)). The ALJ
must clearly articulate the reasons for not giving substantial or considerable weight
to a treating physician’s opinions. Id.
Pannell contends that the court should reverse the ALJ’s decision because
the ALJ erred by not giving controlling weight to the opinion of Dr. Ismail, who
treated Pannell at the Scottsboro Quick Care Clinic from August 2012 through
2017, and by not evaluating Dr. Ismail’s opinion based on the factors outlined in
the SSA regulations. Doc. 10 at 4-5. In particular, Pannell faults the ALJ for
purportedly not considering the length of time that Dr. Ismail treated Pannell and
the medical records that support Dr. Ismail’s opinion. Id. Pannell’s arguments are
not persuasive because, as an initial matter, the ALJ mentioned the length of the
treating relationship in her decision, which indicates she considered that factor, and
the ALJ also considered and summarized all of Pannell’s medical records,
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including the records from Dr. Ismail. See R. 14-17, 19-20. In addition, nothing in
Dr. Ismail’s opinions is contrary to the ALJ’s determination of Pannell’s RFC.
Rather, Dr. Ismail’s opinions provide support for the ALJ’s decision.
A review of the record shows that Dr. Ismail diagnosed Pannell with anxiety
disorder with panic attack in August 2012 and prescribed BuSpar to treat the
condition. R. 508. At follow-up appointments in September and November 2012,
Pannell reported that her anxiety was “doing better” and “under better control”
since she began taking BuSpar. R. 510, 514.
Dr. Ismail performed a consultative examination of Pannell in January 2013,
which revealed that Pannell had a normal cervical spine with normal range of
motion, and a normal dorsal lumbar spine with no tenderness on her back, though
Pannell had some complaints of pain on flexion. R. 542-44. At the examination,
Dr. Ismail observed that Pannell had a normal gait, with no evidence of ataxia, and
that Pannell could do heel-toe walking and squatting. R. 543. Based on his exam,
Dr. Ismail diagnosed Pannell with chronic back pain, degenerative disease of the
spine, depression, anxiety, hypothyroidism, and menopausal syndrome, and he
noted that while Pannell has “some limitation of dorsal lumbar spine,” her “major
problem is her depression and anxiety.” R. 544.
After the consultative examination, Pannell continued to see Dr. Ismail
almost monthly for treatment of her depression, anxiety, hypothyroidism, and pain.
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R. 630-38, 641-47, 650-51, 654-61, 692-872.

At follow-up appointments in

October 2013 and March 2014, Pannell reported that her depression was under
better control, and in May 2014, she reported that her joint pain was better
controlled with medication. R. 631, 641, 650.
Beginning in June 2014, Dr. Ismail’s treating notes mistakenly refer to
Pannell as a male patient. R. 700-872. In light of that mistake, the ALJ gave only
limited weight to Dr. Ismail’s records from June 2014 through June 2017. R. 20.
Pannell attacks that decision, contending that the misidentification is only a
typographical error and not a sufficient reason to discount Dr. Ismail’s opinion.
Doc. 10 at 4. Even if the mistake is simply a typographical or clerical error,
Pannell does not point to anything in the Dr. Ismail’s later records that would
change or is contrary to the ALJ’s determination of her RFC. See id. Indeed, Dr.
Ismail’s later records consistently reflect that Pannell’s depression and anxiety
were only moderate and controlled with medication. R. 712, 716, 720, 726, 730,
735, 739, 743, 747, 751, 755, 760, 764, 768, 772, 776, 781, 785, 794, 816, 825,
829, 833, 862, 867. Additionally, with respect to Pannell’s physical condition, Dr.
Ismail’s records indicate that Pannell’s spine and joints were normal, her pain level
was usually between a one and three, and Pannell’s pain was controlled with

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medication. R. 752-53, 756, 761, 763, 765, 769, 773, 777, 782, 786.1 Finally,
nothing in the records indicates that Dr. Ismail placed any limitations on Pannell’s
functioning. See R. 700-872.
Dr. Ismail’s opinions are consistent with the ALJ’s determination of
Pannell’s RFC, which limits Pannell to less than a full range of light work, and
jobs involving simple instructions and tasks, infrequent job changes, and only
occasional interaction with the general public. R. 17. Accordingly, even if the
ALJ erred by not giving controlling weight to Dr. Ismail’s opinions and by
discounting his later opinions, any such error is harmless. See Shaw v. Astrue, 392
Fed. Appx. 685, 687 n.1 (11th Cir. 2010) (citing Diorio v. Heckler, 721 F.2d 726,
728 (11th Cir. 1983)) (finding that “even if the ALJ erred in failing to mention
every finding made by Dr. Muller, any such error was harmless” when the ALJ’s
determination of the claimant’s RFC was consistent with the doctor’s opinions).
B.

Whether the ALJ properly considered the opinion of the state
agency psychological expert

Pannell also argues that the ALJ erred in weighing the opinion of Dr. Robert
Estock, a non-examining state agency psychological consultant. Doc. 10 at 3, 5-6.
Dr. Estock prepared a mental RFC assessment of Pannell based on his review of
Pannell’s records. R. 137-38. Dr. Estock opined that Pannell would be able to
carry out short simple instructions and tasks and would have moderate limitations
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Pannell reported to Dr. Ismail that her pain level was a six in April 2015, a four in May
2015, and between a three or eight in March 2016. R. 744, 748, 765.

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in the following abilities: understanding, remembering, and carrying out detailed
instructions; maintaining attention and concentration for extended periods;
interacting appropriately with the general public; and responding appropriately to
criticism from supervisors and changes in the workplace. R. 137-38. Dr. Estock
further opined that Pannell would miss one to two days of work per month due to
psychological symptoms. R. 138-39. The ALJ generally gave great weight to Dr.
Estock’s opinion because it was supported by the record, but she disagreed with
the opinion that Pannell would miss one or two days per month. R. 20.
Pannell first faults the ALJ for giving great weight to Dr. Estock’s opinion
because the opinion was more than four and a half years old at the time the ALJ
rendered her decision, and Pannell correctly points out that Dr. Estock based his
opinion on medical records dated prior to February 4, 2013. Id. at 3. As discussed
above, however, Pannell’s more recent medical records show that her depression
and anxiety are moderate and controlled by medication. See pp. 8-10, supra.
Thus, nothing in Pannell’s more recent medical records is contrary to Dr. Estock’s
opinion. See R. 700-872.
Next, Pannell contends that the ALJ erred by adopting most of Dr. Estock’s
opinion, while rejecting his opinion that Pannell would likely miss one to two days
of work per month. Doc. 10 at 5-6. The ALJ did not adopt that aspect of Dr.
Estock opinion because she found that it was not supported by evidence in the
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record.

R. 20.

Indeed, Dr. Jon Rogers, who performed a consultative

psychological evaluation of Pannell in January 2013, found that Pannell had only
moderate mental impairments and that her ability to understand, remember, and
carry out instructions and respond appropriately to supervisors, co-worker, and
work pressures would be only moderately impaired. R. 538-39.2 Additionally, as
discussed above, Dr. Ismail’s records reflect that Pannell’s anxiety and depression
were controlled by medication. R. 641-61, 692-872. Taken together, those records
support the ALJ’s finding, and, therefore, the ALJ did not err by rejecting Dr.
Estock’s opinion that Pannell would likely miss one to two days of work per month
due to psychological symptoms.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Pannell is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching her decision. Therefore, the
Commissioner’s final decision is due to be affirmed. A separate order in
accordance with the memorandum of decision will be entered.

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In her decision, the ALJ incorrectly states that Pannell has no limitation in
understanding, remembering, or applying information, which is contrary to Dr. Rogers’ opinion.
R. 16. This error is harmless, however, because in formulating Pannell’s RFC, the ALJ limited
Pannell to simple instructions and tasks and jobs involving infrequent and well-explained
workplace changes. R. 17.

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DONE the 23rd day of January, 2019.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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