Armstead v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OF DECISION- Signed by Judge R David Proctor on 12/18/2015. (AVC)

FILED
2015 Dec-18 PM 02:01
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
}
THEADORA ARMSTEAD,
}
}
Plaintiff,
}
}
Civil Action No. 6:14-CV-1835-RDP
v.
}
}
CAROLYN W. COLVIN,
}
Acting Commissioner of Social Security }
}
Defendant.
}

MEMORANDUM OF DECISION
Plaintiff Theadora Armstead filed this action pursuant to Section 205(g) of the Social
Security Act (the “Act”), seeking review of the decision of the Commissioner of Social Security
(“Commissioner”) denying her claims for a period of disability and disability insurance benefits
(“DIB”). See 42 U.S.C. § 405(g). Based on the court’s review of the record and the briefs
submitted by the parties, the court finds that the decision of the Commissioner is due to be
affirmed.
I.

Proceedings Below
Plaintiff protectively filed her application for disability and DIB on March 21, 2011, and

alleged that her disability began on August 7, 2010.1 (R. 118-21). Plaintiff’s initial application
was denied June 2, 2011. (R. 50). On July 19, 2011, Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). (R. 54). Plaintiff’s request was granted and a hearing was
held before ALJ George Merchant on December 5, 2012. (R. 18-49, 73, 82).

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Plaintiff’s representative later amended her disability onset date to January 1, 2011. (R. 20). The onset
date was amended as a result of Plaintiff being called in by Greenetrack to do a small amount of work after her
original onset date. Id.

In the ALJ’s decision, dated January 3, 2013, the ALJ determined that Plaintiff had not
been under a disability within the meaning of § 404.1520(f) of the Act, since August 7, 2010 (her
initial onset date),2 and had not engaged in substantial gainful activity since January 1, 2011, her
amended onset date of disability. (R. 56, 60). The ALJ found that Plaintiff had the following
severe impairments: hypertension; lumbar degenerative disc disease; osteoarthritis; obesity;
asthma; carpal tunnel syndrome; and lower leg phlebitis.

(R. 56-57).

However, the ALJ

determined that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (R. 57). The ALJ further determined that Plaintiff had the residual functional
capacity (“RFC”) to perform light work, with some limitations. See 20 C.F.R. § 404.1567(b).
The ALJ also concluded that Plaintiff was capable of performing her various past relevant work
as an employment interviewer, administrative assistant, and office manager.
Plaintiff requested a review by the Appeals Council on March 8, 2011. The Appeals
Council denied review on July 24, 2014. (R. 1-3, 12-13). Following the Appeals Council’s
denial, the ALJ’s decision became the final decision of the Commissioner, and therefore a proper
subject of this court’s appellate review.
II.

Facts
Plaintiff was 52 years old at the time of the hearing, and had achieved a high school

education. (R. 20-21, 182-83). Following graduation from Eutaw High School, Plaintiff claimed
she enrolled in some college courses at the Alabama Institute of Business and Walker State
College. (R. 21, 182-83). Plaintiff stated that she is able to cook breakfast for herself and to
prepare sandwiches, but does not do any major cooking. (R. 33). Plaintiff’s daughter handles
major shopping for her. (R. 37). Plaintiff further stated that she is able to do small amounts of
2

Despite the amendment to the date of onset, the ALJ still referenced the original onset date in his opinion.

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housework, such as washing and ironing a couple of loads of clothes throughout the week. (R.
37). Plaintiff also is able to use the computer on occasion, usually around twice each week. (R.
42). Plaintiff reported difficulties sleeping, claiming she tossed and turned most nights. (R. 38).
Plaintiff’s grandchildren stay with her approximately four days each week. (R. 22).
During the hearing, Plaintiff testified that she experiences daily pain. (R. 30). Plaintiff
claims that her symptoms have gotten worse since she was laid off, stating that she was now
unable to work because of back issues, rating the pain as 8-8.5/10. (R. 24, 26-28). She further
testified that she was unable to stand longer than fifteen to twenty minutes, and was unable to sit
more than fifteen minutes. (R. 28).
Plaintiff’s past relevant work included employment as an office manager, administrative
assistant, employment service temporary clerk, and a sewing machine operator. (R. 143-150).
Plaintiff’s most recent job was at Greenetrack, but she was laid off when the State of Alabama
shut that business down. (R. 24, 184).
During the hearing, a vocational expert, Renee Smith (“VE”), categorized Plaintiff’s past
work as employment interviewer, administrative assistant, office manager, and inventory clerk.
(R. 43-44). The VE classified Plaintiff’s past work as skilled work with the exception of her job
as an inventory clerk which he indicated was semi-skilled. (R. 44). The VE testified that
Plaintiff would be capable of employment in her capacity as an employment interviewer,
administrative assistant, and as office manager, however, would not be able to be employed as an
inventory clerk. (R. 45)
Plaintiff received medical care from Dr. Carmella Anderson from January 1994 to
August 2009. (R. 196-229). Dr. Anderson conducted an MRI of Plaintiff’s lumbar spine in
March 2011.

(R. 223).

This MRI revealed that the lumbar vertebrae were in anatomic

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alignment, with a disc bulge at L4-L5 slightly asymmetric to the left, without evidence of neural
impingement. (Id.). Dr. Anderson’s impression was mild degenerative disc disease, without
findings strongly suggestive of neural impingement. (Id.).
Plaintiff’s history of specialized treatment for back problems dates back to 2006, when
she began treatment at the SpineCare Center after being referred there by Dr. Anderson. (R.
291-333). Plaintiff first sought treatment at the SpineCare Center in March 2006. (R. 291). Dr.
Wesley Spruill, the treating physician at the SpineCare Center, noted that Plaintiff reported a
back injury which occurred on March 18, 2006, when she was taking care of her sick brother.
(R. 292). Dr. Spruill reported that an MRI of Plaintiff’s spine, performed March 27, 2006, was
consistent with Dr. Anderson’s findings, and showed mild degenerative disc disease, without
findings strongly suggestive of neural impingement. (R. 292). Plaintiff received a diagnosis of
low back pain, lumbar strain, L4-L5 lumbar degenerative disc disease with mild disc bulging,
and failure of conservative treatment. (Id.). Plaintiff was given an epidural injection during that
visit. (Id.).
Plaintiff was treated by Drs. Bobo and Fernandez at the Emergi Care Clinic from January
2007 to November 2010. (R. 243-66). On April 22, 2009, Dr. Bobo conducted an X-Ray of
Plaintiff’s spine. (R. 262). The X-Ray revealed normal alignment and curvature of the spine.
(Id.). Again, in April 2009, Plaintiff was seen by Dr. Fernandez regarding her complaints of
back pain. (R. 247). Plaintiff reported tenderness in the lumbar area upon palpation. (Id.). Dr.
Fernandez noted that Plaintiff was able to heel and toe walk. (Id.). In November 2010, Dr. Bobo
saw Plaintiff with complaints of body pain. (R. 244). Dr. Bobo reported that Plaintiff had no
redness or swelling of any joints. (Id.). Dr. Bobo further reported that Plaintiff had full range of
motion in all of her joints. (Id.).

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Plaintiff was treated by Dr. Katona from April to August 2010. (R. 230-42). During her
initial visit, Plaintiff complained of headache, hypertension, and arthritis. (R. 237). Dr. Katona
noted Plaintiff’s past medical history (hypertension, menopause, and arthritis), and that she was
on blood pressure medication at the time (Enalapril). (Id.). Dr. Katona further noted that
Plaintiff denied back pain at this visit. (R. 238). Dr. Katona’s physical examination revealed
that Plaintiff had a full range of motion. (R. 239).
Plaintiff was treated again by Dr. Katona in August 2010.

(R. 231-33).

Plaintiff

presented with complaints of arthritis and foot pain. (R. 231). Dr. Katona conducted another
physical examination on Plaintiff, finding again that Plaintiff had full range of motion, with some
pain in her right foot. (R. 232).
Beginning in November 2010, Plaintiff sought treatment at Whatley Health Services. (R.
267-72, 345-49, 350-51, 365-71). In August 2011, Plaintiff received a diagnosis of Carpal
Tunnel Syndrome. (R. 347).
Dr. Judy Travis conducted a consultative physical examination of Plaintiff on May 23,
2011. (R. 274-25). Dr. Travis noted that Plaintiff had bilateral normal appearance in her arms
and legs, grade two reflexes, and range of motion. (R. 275). She found that Plaintiff had normal
dexterity in both hands, and that Plaintiff had normal curvature and range of motion in her back
and spine, with no spasms, deformity, or tenderness. (R. 275). Plaintiff’s gait was found to be
normal, and that her tandem walk was also normal. (R. 275).
Plaintiff was a patient at the Greene County Hospital in March 2012 and July 2012. (R.
352-64). In March 2012, she presented with complaints of back pain. (R. 352-53). An X-ray
was performed, and Dr. Roland Ng, a radiologist, reported minor scoliosis, along with minor
degenerative disc disease. (R. 352). In July 2012, Plaintiff presented with complaints of leg

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pain. (Id.). Nursing notes reported that Plaintiff could move all extremities well. (R. 358).
Plaintiff’s discharge notes noted that Plaintiff was able to ambulate without difficulty. (R. 360).
In November 2012, Plaintiff reported taking the following medications: for pain – Lyrica,
Meloxicam, Celebrex, and Tramadol; for headaches – Loratadine; for asthma – Ventolin; as a
muscle relaxer – Cyclobenzaprine; and for hypertension – Enalapril. (R. 185).
II.

ALJ Decision
Disability under the Act is determined under a five-step test. 20 C.F.R. § 404.1520.

First, the ALJ must determine whether the claimant is engaging in substantial gainful activity.
20 C.F.R. § 404.1520(a)(4)(i). “Substantial work activity” is work activity that involves doing
significant physical or mental activities. 20 C.F.R. § 404.1572(a). “Gainful work activity” is
work that is done for pay or profit. 20 C.F.R. § 404.1572(b). If the ALJ finds that the claimant
engages in substantial gainful activity, then the claimant cannot claim disability. 20 C.F.R. §
404.1520(b).
Second, the ALJ must determine whether the claimant has a medically determinable
impairment or a combination of impairments that significant limits the claimant’s ability to
perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such impairment, the
claimant may not claim disability. Id. Third, the ALJ must determine whether the claimant’s
impairment meets or medically equals the criteria of an impairment listed in 20 C.F.R. § 404,
Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If such criteria
are met, the claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared disabled under
the third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ
must first determine the claimant’s residual functional capacity (“RFC”), which refers to the

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claimant’s ability to work despite her impairments. 20 C.F.R. § 404.1520(e). In the fourth step,
the ALJ determines whether the claimant has the RFC to perform past relevant work. 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past relevant
work, then the claimant is deemed not disabled. Id. If the ALJ finds the claimant unable to
perform past relevant work, then the analysis proceeds to the fifth and final step. 20 C.F.R. §
404.1520(a)(4)(v). In the last part of the analysis, the ALJ must determine whether the claimant
is able to perform any other work commensurate with her RFC, age, education, and work
experience. 20 C.F.R. § 404.1520(g). Here, the burden of proof shifts from the claimant to the
ALJ to prove the existence, in significant numbers, of jobs in the national economy that the
claimant can do given her RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g),
404.1560(c).
III.

Plaintiff’s Argument for Reversal
Plaintiff presents the following arguments in support of her position that the decision of

the ALJ should be reversed. First, Plaintiff argues that the ALJ’s decision to reject the credibility
of her statements is not based upon substantial evidence. (Pl.’s Mem. 12-18). Second, she
contends that the ALJ failed to apply the proper legal standards when considering Plaintiff’s pain
testimony. (Pl.’s Mem. 18-19). Third, Plaintiff questions whether the ALJ properly considered
her receipt of unemployment benefits in deciding her claim. (Pl’s Mem. 14-15). Finally,
Plaintiff alleges that the ALJ failed to consider the side effects of her medications. (R. 19-20).
IV.

Standard of Review
The only issues before this court are whether the record reveals 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 correct legal standards were applied. See Lamb v. Bowen, 847

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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) mandates that the Commissioner’s 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 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. See Id. (citing 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) (other
citations omitted). If supported by substantial evidence, the Commissioner’s factual findings
must be affirmed even if the evidence preponderates against the Commissioner’s findings. See
Martin, 894 F.2d at 1529). While the court acknowledges that judicial review of the ALJ’s
factual findings is limited in scope, the court also notes that review “does not yield automatic
affirmance.” Lamb, 847 F.2d at 701.
V.

Discussion
After careful review, and for the following reasons, the court concludes that the ALJ’s

findings are supported by substantial evidence and that proper legal standards were applied in the
determination of Plaintiff’s disability claim.
A.

The ALJ’s Credibility Determination was Based Upon Substantial Evidence
and the ALJ Correctly Applied the Pain Standard

Plaintiff argues that the ALJ’s credibility findings made in assessing her RFC were not
supported by substantial evidence. (Pl.’s Mem. 12-13). Plaintiff contends that the ALJ based his
credibility determination on the fact that she had continued to work, despite her back problems,
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which caused her significant pain.

(Pl.’s Mem. 12-13).

Plaintiff asserts that her pain

progressively worsened over time, and became debilitating after she stopped working. (Pl.’s
Mem. 13).
In evaluating claims of disability based upon subjective complaints of pain, a claimant
must “produce ‘evidence of an underlying medical condition and (1) objective medical evidence
that confirms the severity of the alleged pain arising from that condition or (2) that the
objectively determined medical condition is of such severity that it can reasonably be expected to
give rise to the alleged pain.’” Edwards v. Sullivan, 937 F.2d 580, 584 (11th Cir. 1991) (quoting
Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)). If the ALJ discredits a claimant’s
subjective testimony regarding pain, he is required to “articulate explicit and adequate reasons”
for doing so. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).
The court concludes that the ALJ satisfied these requirements in rendering his decision.
(R. 57-59). After reviewing the record evidence, the ALJ concluded that Plaintiff’s medically
determinable impairments could reasonably be expected to cause some of her reported
symptoms. (R. 58). However, the ALJ determined that the intensity, persistence, and limiting
effects of these symptoms would not preclude Plaintiff from performing work activities within
the scope of her RFC. (R. 58). The ALJ noted that Plaintiff had continued to work for several
years, despite her pre-existing back condition. (R. 58). The ALJ also considered Plaintiff’s
receipt of unemployment compensation as another factor in determining her credibility. (R. 58).
In order to receive unemployment benefits, Plaintiff was required to attest that she was capable
of working and actively seeking employment. (R. 58). During the hearing, Plaintiff testified that
she had sought work while drawing unemployment benefits. (R. 25).3

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The court addresses below the argument that the ALJ did not properly consider Plaintiff’s unemployment
benefits claim.

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The ALJ also relied upon the physical examinations of two treating physicians -- Drs.
Katona and Bobo -- in making his credibility determination. (R. 58, 230-42, 243-66). Both of
these physicians noted that Plaintiff had full range of motion in all of her joints. (R. 232, 244).
Dr. Bobo found that Plaintiff had no redness or swelling of any joints. (R. 244). The ALJ also
considered the physical consultative examination conducted by Dr. Travis on May 23, 2011. (R.
273-75).

Dr. Travis reported that Plaintiff had normal range of motion with her upper

extremities, 5/5 grip bilaterally, normal gait, and that she had normal curvature of the back and
spine. (R. 275).
The ALJ also took into consideration Plaintiff’s testimony regarding her daily activities.
(R. 59). Plaintiff testified that her grandchildren would stay with her four days each week, and
that she occasionally used the computer at her residence. (R. 22, 30). Plaintiff stated that she
occasionally was able to fix her own meals, such as breakfast or sandwiches, and that she did
laundry one to two times per week. (R. 33).
The key issue is whether substantial evidence supports the ALJ’s decision to discredit
Plaintiff’s pain testimony. Substantial evidence “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) (other citations omitted).

While Plaintiff alleges that her

symptoms have worsened over time, the record evidence does not support that assertion; Plaintiff
relies only upon her own testimony; however, the ALJ also considered the findings of Drs. Bobo,
Katona, and Travis. The court finds that the ALJ did not commit error by discrediting Plaintiff’s
pain testimony.
Furthermore, the ALJ did not err by considering Plaintiff’s daily activities. As the
Eleventh Circuit has held, a claimant cannot be disqualified from disability by simple

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“participation in everyday activities of short duration, such as housework or fishing . . . .” Lewis
v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997). However, the Social Security Regulations
provide that daily activities may be considered as one factor in a disability determination. See 20
C.F.R. §§ 404.1529(c)(3)(i) and 416.929(c)(3)(i).

The ALJ also considered other factors,

including the medical evidence of record, in addition to her daily activities. The court finds that
the ALJ did not commit any error here.
Plaintiff further asserts that the ALJ misrepresented the medical evidence by “cherrypicking” from the medical evidence certain statements to support his findings and failed to
consider her visits to other doctors and clinics for her pain. (Pl.’s Mem. 15-16). Plaintiff bases
this assertion on Social Security Ruling (“SSR”) 96-7p, which references “[p]ersistent attempts
by the individual to obtain relief of pain . . . .” However, SSR 96-7p identifies examples of
“persistent attempts” such as taking increased medication, trying various treatments, being
referred to a specialist, or changing a treatment source. SSR 96-7p, 1996 WL 374186 at *7.
Granted, Plaintiff was referred to and seen by a specialist, and a MRI revealed mild degenerative
disc disease, without findings strongly suggestive of neural impingement. (R. 292). But that
does not reflect the complete medical record of Plaintiff.
The ALJ’s opinion reflects a consideration of Plaintiff’s full medical history. The ALJ
expressly noted that Plaintiff had been treated by several doctors, including Drs. Katona and
Bobo, and that the X-rays of Plaintiff’s lumbar spine on April 2, 2012, showed only minor
scoliosis and minor degenerative disc disease. (R. 58, 252). Accordingly, the court rejects
Plaintiff’s argument that the ALJ “cherry-picked” thorough her medical history.

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B.

The ALJ Properly Considered Plaintiff’s Receipt of Unemployment Benefits
in Determining Disability

Plaintiff next argues that the ALJ improperly considered her receipt of unemployment
benefits in his credibility determination. (Pl.’s Mem. 14-15). Plaintiff offers a memorandum
from Chief Administrative Law Judge Cristaudo (the “Cristaudo Memorandum”), which states
that receipt of unemployment benefits does not preclude receipt of Social Security disability
benefits, but that an unemployment application is still relevant and may be considered in
determining disability. (Pl.’s Mem. 14).
In order to receive unemployment benefits, Plaintiff was required to attest that she was
both capable of working and actively seeking employment.

(R. 58).

The Cristaudo

Memorandum states:
[T]he underlying circumstances will be of greater relevance than
the mere application for and receipt of the benefits . . . . [T]he fact
that a person has, during [] her alleged period of disability, sought
employment at jobs with physical demands in excess of the
person’s alleged limitations would be a relevant factor that an ALJ
should take into account, particularly if the ALJ inquired about an
explanation for this apparent inconsistency. Accordingly, ALJs
should look at the totality of the circumstances in determining the
significance of the application for unemployment benefits and
related efforts to obtain employment.
Pl.’s Brief, Doc. 9-2.
The court finds that the ALJ’s handling of this issue was consistent with this
memorandum and, more importantly, that proper legal standards were applied. The ALJ did not
rely solely on Plaintiff’s application for unemployment as a basis for discrediting Plaintiff’s
testimony. The record reflects that the ALJ considered Plaintiff’s application for unemployment,
along with “all of the medical and other evidence” in reaching this findings.

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C.

The ALJ Properly Considered the Effects of Plaintiff’s Medication

Plaintiff next argues that the ALJ failed to properly consider the effect of her
medications. (Pl.’s Mem. 19-20). The court disagrees. Plaintiff notes that two of her prescribed
medications, Cyclobenzaprine and Tramadol, list drowsiness as a “more common” side effect.
(Pl.’s Mem. 19). Plaintiff relies on Cowart v. Schweiker, 662 F.2d 731 (11th Cir. 1981). There,
“the [ALJ] should have made a finding on appellant’s claim regarding side effects, making it
possible for a reviewing tribunal to know that the claim was not entirely ignored.” Id. at 737
(quoting Figueroa v. Secretary of HEW, 585 F.2d 551 (1st Cir. 1978)).

But Cowart is

distinguishable from the facts presented here. In Cowart, the ALJ failed to elicit testimony and
made no findings regarding the effects of the medication upon the claimant’s ability to work. Id.
Here, the record reflects that the ALJ did elicit testimony from Plaintiff regarding the side
effects of her medication. (R. 34-35, 46-47). Moreover, the ALJ made a finding as to the
limiting effects of Plaintiff’s symptoms. Specifically, he found that the record did not support
Plaintiff’s statements regarding the limiting effects of her medications. (R. 58). In Carter v.
Comm’r of Soc. Sec., 411 Fed. Appx. 295 (11th Cir. 2011), the Eleventh Circuit held that the
ALJ did not err in considering and rejecting the claimant’s claim regarding side effects of his
medication, noting that the claimant had not complained to the treating physician of any side
effects. Id. at 297. In this case, the record is devoid of any complaints to physicians of side
effects. (R. 267-69, 345-51). The court concludes that the ALJ properly considered the side
effects of Plaintiff’s medication in reaching a disability determination.
VI.

Conclusion
After careful review, the court concludes that the ALJ’s determination that Plaintiff is not

disabled is supported by substantial evidence and the proper legal standards were applied in

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reaching this determination. The Commissioner’s final decision is therefore due to be affirmed.
A separate order in accordance with this memorandum of decision will be entered.
DONE and ORDERED this December 18, 2015.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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