Nolen v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 7/31/2015. (PSM)

FILED
2015 Jul-31 PM 02:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
ANGELA HAYES NOLEN
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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6:14-cv-01306-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Angela H. Nolen, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying
her application for Supplemental Security Income (“SSI”). Ms. Nolen 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).
Ms. Nolen was thirty-one years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and she has a ninth grade education, as well as
training to be a certified nurse’s aide. (Tr. at 130, 134, 140.) Her past work
experiences include employment as a nurse’s aide and short-order cook. (Tr. at
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140.) Ms. Nolen claims that she became disabled on November 15, 2009, due to
bulging discs in her back. (Tr. at 134.)
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus
eligible for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in
order until making a finding of either disabled or not disabled; if no finding is made,
the analysis will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step requires the evaluator to determine whether the
plaintiff is engaged in substantial gainful activity (“SGA”). See Id. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the
evaluator moves on to the next step.
The second step requires the evaluator to consider the combined severity of
the plaintiff’s medically determinable physical and mental impairments. See Id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational
requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The
decision depends on the medical evidence contained in the record. See Hart v.
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Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that “substantial medical
evidence in the record” adequately supported the finding that plaintiff was not
disabled).
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal
to the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509
and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s
residual functional capacity (“RFC”) before proceeding to the fourth step. See Id.
§§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine
whether the plaintiff has the RFC to perform the requirements of his past relevant
work. See Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the plaintiff’s impairment
or combination of impairments does not prevent him from performing his past
relevant work, the evaluator will make a finding of not disabled. See Id.
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The fifth and final step requires the evaluator to consider the plaintiff’s
RFC, age, education, and work experience in order to determine whether the
plaintiff can make an adjustment to other work. See id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the plaintiff can perform other work, the evaluator will find him
not disabled. Id.; see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff
cannot perform other work, the evaluator will find him disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ found that Ms. Nolen
meets the requirements for SSI and was insured through the date of his decision.
(Tr. at 27.) He further determined that Ms. Nolen has not engaged in SGA since
the alleged onset of her disability. (Tr. at 29.) According to the ALJ, Plaintiff’s
obesity and disorders of the back are considered “severe” based on the
requirements set forth in the regulations. (Id.) However, he 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 did not find Ms. Nolen’s
allegations to be totally credible, and he determined that she has the following
RFC: to perform light work with a moderate effect on her concentration occurring
occasionally during an 8-hour workday; she can frequently balance, stoop, reach,
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handle, finger, feel, and climb stairs and ramps; and while she can occasionally
kneel, crouch, and crawl, she cannot climb ladders, ropes, or scaffolds. (Tr. at 30.)
According to the ALJ, Ms. Nolen is able to perform her past relevant work as
a short order cook, which does not require her to perform activities precluded by
her RFC. (Tr. at 34.) He determined that “transferability of job skills is not
material” in this case. (Tr. at 35.) Even though Plaintiff can perform her past
relevant work as a short order cook, the ALJ used Medical-Vocation Rule 201.25 as
a guideline for finding that there are also a significant number of other jobs in the
national economy that she also is capable of performing, such as fast food worker
and a product assembler. (Id.) The ALJ concluded his findings by stating that
Plaintiff “was not under a ‘disability,’ as defined in the Social Security Act” since
the date the application was filed. (Tr. at 36.)
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 Stone
v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives
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deference to the factual findings of the Commissioner, provided those findings are
supported by substantial evidence, but applies close scrutiny to the legal
conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, this Court may not decide facts, weigh evidence, or substitute
its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004)). “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
proof preponderates against the Commissioner’s decision, it must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
However, no decision is automatic, for “despite th[e] deferential standard
[for review of claims], it is imperative that th[is] 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) (citing Arnold v. Heckler, 732 F.2d 881,
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883 (11th Cir. 1984)). 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
Ms. Nolen alleges that the ALJ’s decision should be reversed and remanded

for one overarching reason. She believes that the ALJ failed at step three of the
sequential evaluation process to adequately articulate why her impairments in
combination did not meet or equal the criteria of Listing 1.04, pertaining to spine
disorders. (Doc. 14 at 10.)
A plaintiff may satisfy a listing at step three of the sequential evaluation
process by demonstrating that her impairment meets a listing or has symptoms that
are equal in severity to those covered by the listing. See 20 C.F.R. § 404.1526. The
evidentiary standards for presumptive disability under the listings are stricter than
for cases that proceed to other steps in the sequential evaluation process because
the listings represent an automatic screening based on medical findings rather than
an individual judgment based on all relevant factors in a claimant’s claim. See 20
C.F.R. §§ 416.920(d), 416.925, 416.926; Sullivan v. Zebley, 493 U.S. 521, 530-32
(1990).To satisfy a listing, the plaintiff, who bears the burden of proving she is
disabled, must supply the necessary evidence to support a finding that she was
disabled at the time in question. See 20 C.F.R. § 416.912(a) (“you must furnish
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medical and other evidence we can use to reach conclusions about your
impairment(s)”); 20 C.F.R. § 416.912(c) (plaintiff must provide evidence
“showing how . . . impairment(s) affects your functioning during the time you say
that you are disabled”). If a plaintiff has more than one impairment, none of which
meets or equals the listing alone, the ALJ must still determine whether the
combination is medically equal to the Listing. See 20 C.F.R. § 404.1526(a). To
“equal” a listing, the medical findings must be “at least equal in severity and
duration to the listed findings.” Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir.
2002) (citations omitted); 20 C.F.R. §§ 416.925, 416.926. However, a plaintiff
cannot meet the equivalence step by demonstrating that the overall functional
impact of her unlisted impairment or combination of impairments is as severe as
those covered by the listing. Wilkinson o/b/o Wilkinson v. Bowen, 847 F.2d 660, 662
(11th Cir. 1987). A claimant’s impairments must meet or equal all of the specified
medical criteria in a particular listing for the claimant to be disabled at step three of
the sequential evaluation process. See Zebley, 493 U.S. at 530-32.
Plaintiff contends that the ALJ erred by failing to articulate why the
combined impairments did not meet or equal the criteria of Listing 1.04. Plaintiff’s
argument fails because the ALJ is not required to do so. An explicit explanation of
why a plaintiff does not meet the requisite criteria is not necessary if the proper
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procedure is followed and there is substantial evidence to support the ALJ’s
findings. See Gray ex rel. Whymss v. Comm’r of Soc. Sec., 454 F. App’x 748, 750
(11th Cir. 2011) (concluding that the ALJ properly cited the required steps of
analysis and there was substantial evidence to support his findings, although he did
not explicitly cite the listing); Turberville ex rel. Rowell v. Astrue, 316 F. App’x 891,
893 (11th Cir. 2009) (“We conclude that—although the ALJ did not explicitly
discuss why [the claimant] did not actually meet Listing 112.05—substantial record
evidence supports that [the claimant’s] condition did not actually or functionally
meet Listing 112.05 and, therefore, supports the ALJ’s ultimate conclusion that
[he] was not disabled.”). Here, the ALJ explained that there was no evidence to
support a finding that Plaintiff’s impairments met or medically equaled any listed
impairment. (Tr. at 29.) He also specifically found that her impairments did not
satisfy Listing 1.04. (Id.) He stated his reasoning as follows: because Ms. Nolen’s
impairments did not result in all of the limitations outlined in the listing, they do
not meet or medically equal one of the listed impairments. (Id.) The ALJ did not
have to provide an explicit explanation of his decision; it is sufficient that the ALJ
stated Ms. Nolen’s impairments did not impose the same limitations as those
provided in the listing and there is substantial evidence to support his findings. The
ALJ’s statement that Ms. Nolen’s impairments do not impose the listed limitations
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is an adequate articulation of an appropriate basis for his decision that Ms. Nolen’s
impairments do not meet Listing 1.04.
Moreover, the ALJ’s conclusion that Plaintiff’s impairments did not meet or
equal Listing 1.04 is supported by substantial evidence from the record. The listing
itself provides the qualifying criteria. See 20 C.F.R. § 404.1525(a). Listing 1.04
provides:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, vertebral fracture), resulting in compromise of a nerve
root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test
(sitting and supine); or
B. Spinal arachnoiditis, confirmed by an operative note or pathology
report of tissue biopsy, or by appropriate medically acceptable
imaging, manifested by severe burning or painful dysesthesia,
resulting in the need for changes in position or posture more than
once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication,
established by findings on appropriate medically acceptable
imaging, manifested by chronic nonradicular pain and weakness,
and resulting in inability to ambulate effectively, as defined in
1.00B2b.
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20 C.F.R. pt. 404, supt. P, app. 1, § 1.04. As noted, the impairments must meet or
equal all of the specified criteria in the listing for the claimant to be disabled at step
three of the analysis. Zebley, 493 U.S. at 530-32. The medical records provided
specifically mention that Ms. Nolen did not suffer any sensory or motor loss. (Tr. at
205, 209, 242.) With the absence of even one outlined limitation, such as sensory
or motor loss (found in subpart A), Ms. Nolen’s impairments do not meet the
listing.
Plaintiff also contends that the ALJ erred in failing to seek out a medical
expert’s opinion as to whether her impairments equaled Listing 1.04. However, the
ALJ was not required to consult a medical advisor. The use of a medical advisor to
determine a listing’s applicability is discretionary, not mandatory. See 20 C.F.R. §
416.927(e)(iii). Deciding medical equivalence is an issue reserved for the
Commissioner, and in cases that proceed to the hearing level, the responsibility for
deciding whether a claimant’s impairments equal the criteria of a listed impairment
rests with the ALJ. See id. §§ 416.926(e), 416.927(e)(2). Furthermore, given that
Plaintiff has not identified objective medical evidence supporting each of the
Listing 1.04 criteria, such as motor loss accompanied by sensory or reflex loss, a
medical advisor would have served no purpose.
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The Court notes that Plaintiff also states in passing that the ALJ erred in
finding her testimony of disabling limitations not credible. By failing to elaborate on
or provide citation for his claim, Plaintiff has waived this argument. See N.R.L.B. v.
McClain of Georgia, Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (“Issues raised in a
perfunctory manner, without supporting arguments and citation to authorities are
generally deemed to be waived.”). If the argument had been properly raised, the
Court would find it lacks merit. In assessing Plaintiff’s credibility, the ALJ
explained that the evidence does not support a finding that Plaintiff cannot perform
light-level work. (Tr. at 32). In weighing the evidence of record, the ALJ found a
significant gap in treatment immediately after Plaintiff’s filing date, suggesting that
her symptoms may not have been as serious as alleged. (Tr. at 33). This treatment
history undermines Plaintiff’s allegations of disability. See 20 C.F.R. §
416.929(c)(3)(iv); Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996) (finding
substantial evidence to discredit the claimant’s testimony regarding pain where his
course of treatment was conservative). Moreover, while Plaintiff testified that she
had leg weakness and numerous sprained ankles, the ALJ found no support in her
treatment records for this testimony. (Tr. at 33, 180-207, 216-251). The ALJ
further noted that despite reporting she could only walk about 20 to 25 feet before
needing to take a break, Plaintiff testified that she walked almost three times that
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amount to the hearing room. (Tr. at 31, 49, 203). He also found Plaintiff’s claim
that she cooks for an hour while sitting down inconsistent with her testimony that
she can sit for only up to 10 minutes. (Tr. at 33, 54, 150). The ALJ’s consideration
of Plaintiff’s credibility was sufficient and supported by the evidence. See Dyer, 395
F.3d at 1211 (explaining that a credibility determination does not need to cite
particular phrases, but it cannot merely be a broad rejection which is inadequate for
the court to determine whether the ALJ considered the claimant’s medical
condition as a whole).
IV.

Conclusion
Upon review of the administrative record, and considering all of Ms. Nolen’s

arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. A separate order will be
entered.
DONE and ORDERED on July 31, 2015.

_____________________________
L. Scott Coogler
United States District Judge
160704

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