Little v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 7/31/2015. (KAM, )

FILED
2015 Jul-31 PM 03:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
MARQUITA ANNETTE LITTLE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No. 7:14-cv-00999-JEO

MEMORANDUM OPINION
Plaintiff Marquita Annette Little brings this action pursuant to 42
U.S.C. § 405(g), seeking review of the final decision of the Acting
Commissioner of Social Security (“Commissioner”) denying her application
for disability insurance benefits. (Doc. 1).1 This case has been assigned to
the undersigned United States Magistrate Judge pursuant to this court's
general order of reference. The parties have consented to the jurisdiction of
this court for the disposition of the matter. (Doc. 10). See 28 U.S.C. §
636(c), FED. R. CIV. P. 73(a). Upon review of the record and the relevant
law, the undersigned finds that the Commissioner’s decision is due to be
affirmed.

1

References herein to “Doc. ___” are to the electronic numbers at the top of each
pleading that are assigned by the Clerk of the Court.

I.

Procedural History
Plaintiff filed her application for disability insurance benefits on

November 4, 2010. (R. 125-28).2 She claims to have become disabled on
September 25, 2009. (Id.) Her application was initially denied. (R. 74-78).
Plaintiff then requested a hearing before an Administrative Law Judge
(“ALJ”). Plaintiff, her counsel, and a vocational expert (“VE”) attended the
hearing via teleconference on June 4, 2012. (R. 42). On September 6, 2012,
the ALJ issued a decision in which he found Plaintiff was not disabled. (R.
25-37).
The Appeals Council declined to grant review of the ALJ’s decision.
(R. 1-3). Plaintiff then filed the present action for judicial review under 42
U.S.C. § 405(g). (Doc. 1).
II.

Standard of Review
In reviewing claims brought under the Social Security Act, this

court’s role is a narrow one. “Our review of the Commissioner’s decision is
limited to an inquiry into whether there is substantial evidence to support the
findings of the Commissioner, and whether the correct legal standards were
applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); see
2

References herein to “R. ___” are to the administrative record located at Document 6
(Answer of the Commissioner).
2

also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The plaintiff must
demonstrate that the decision of the Commissioner is not supported by
substantial evidence. See, e.g., Allen v. Schweiker, 642 F.2d 799 (5th Cir.
1981). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th
Cir. 2011) (internal quotations and citations omitted). The court gives
deference to factual findings and reviews questions of law de novo.
Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). The court
“may not decide the facts anew, reweigh the evidence, or substitute [its]
judgment for that of the [Commissioner], rather [it] must scrutinize the
record as a whole to determine if the decision reached is reasonable and
supported by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir.1982)) (internal quotations and other citations omitted); see also
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). As noted above,
conclusions of law made by the Commissioner are reviewed de novo.
Cornelius, 936 F.2d at 1145. Accordingly, “[n]o ... presumption of validity
attaches to the [Commissioner’s] conclusions of law.” Wiggins v.

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Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
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 12 months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. §
416(i). A physical or mental impairment is “an impairment that results from
anatomical, physiological, or psychological abnormalities which are
demonstrable 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 Commissioner
must determine in sequence:
whether the claimant: (1) is unable to engage in substantial
gainful activity; (2) has a severe medically determinable
physical or mental impairment; (3) has such an impairment that
meets or equals a Listing and meets the duration requirements;
(4) can perform his past relevant work, in light of his residual
functional capacity; and (5) can make an adjustment to other
work, in light of his residual functional capacity, age,
education, and work experience.
Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014)
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(citing 20 C.F.R. § 404.1520(a)(4)). “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 than step
three, leads to a determination of ‘not disabled.’ ” McDaniel v. Bowen, 800
F.2d 1026, 1030 (11th Cir. 1986). “Once a finding is made that a claimant
cannot return to prior work the burden shifts to the Commissioner to show
other work the claimant can do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th
Cir. 1995) (citation omitted). The Commissioner must further show that
such work exists in the national economy in significant numbers. Id.; Evans,
551 F. App’x at 524.
IV. Findings of the ALJ
Plaintiff was 51 years old at the time of the ALJ’s decision. (R. 44).
She has a high school education. (R. 45). She has past relevant work
experience as a bank teller and “school cook worker.” (R. 57). In her
disability report, Plaintiff alleged she has the following conditions, which
caused her to become disabled and unable to work: high blood pressure,
right ankle tendonitis, shoulder muscle spasms, allergic reaction to pain
medications, depression, and high cholesterol. (R. 155).
Following a hearing, the ALJ used the five step sequential evaluation

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process to evaluate the medical records, testimony, and other evidence. (R.
25-37). At step one, the ALJ found that Plaintiff has engaged in substantial
gainful activity (“SGA”) since the alleged onset date, because “she earned
$4,857.00 in the 4th quarter of 2009.” (R. 27).
At step two, the ALJ found that Plaintiff suffered from the following
severe impairments: allergies and allergic rhinitis; pharyngitis; allergic
reaction to medication; sinusitis; muscle spasms with chronic low back pain;
neck, hip, shoulder, buttock, and hand pain status post motor vehicle
accident; myalgias; hypertension; plantar fasciitis; and posterior tibial
tendonitis status post right ankle posterior tibial tendon synovectomy. (R.
27). The ALJ further found that Plaintiff’s hypercholesteremia to was a nonsevere impairment and that her alleged depression was not a medically
determinable impairment. (R. 27, 31).
At step three, the ALJ found that the combination of severe and nonsevere impairments did not meet the severity of an impairment contained in
the listing of impairments.3 (R. 31). He further stated that Plaintiff’s right
ankle tendonitis did not rise to the level of major dysfunction of a joint
(Listing 1.02). (Id.)

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The listing is found at 20 C.F.R. Part 404, Subpart P.
6

The ALJ then determined Plaintiff’s residual functional capacity
(“RFC”). He found that Plaintiff “[could] lift and carry between 5 and 15
pounds.” (R. 32). More specifically, he cited the functional capacity
evaluation (“FCE”) performed at Champion Sports Medicine on August 19,
2010, “which indicated that the claimant could lift 5-7.5 pounds frequently
and 10-15 pounds occasionally.” (R. 34). He also stated, “Dr. [Scott]
Morris kept her at light duty, which is akin to light work.” (Id.) The ALJ
also noted that “[t]he medical evidence of record does not support the
claimant’s allegations regarding the severity of her back and neck pain….”
(R. 33). Namely, Plaintiff’s testimony at the hearing regarding her inability
to turn her head, precluding her from driving, and her inability to bend her
waist was found to be contradicted by Dr. Walid Freij’s examination in
December 2011. (Id.) Thus, the ALJ determined that Plaintiff had the RFC
to perform a reduced range of light work. (R. 34).
After determining Plaintiff’s RFC, the ALJ proceeded to step four.
Here, he found that Plaintiff could perform her past relevant work as a bank
teller. (R. 35). In making this finding, the ALJ relied upon the testimony of
the VE. (Id.) The VE also testified that Plaintiff could perform other jobs
that exist in significant numbers in the national economy. (Id.) These jobs

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include ticket seller, cashier, and check writer. (R. 36).
Based on the foregoing, the ALJ concluded that Plaintiff was not
disabled. (R. 36-37).
V.

Analysis
Plaintiff claims that the Medical Vocational Rules (“MVR”) require a

finding that she is disabled. She also argues that the ALJ erred in finding
her capable of performing a reduced range of light work. Instead, she claims
the ALJ should have found that she was capable of performing only
sedentary work. (Doc. 9 at 6-9). If she is found to be capable of only
sedentary work, she posits that the “Grids” require a finding that she is
disabled. (Id.) The court will address her assertions in reverse order.
A.

Did the ALJ err in finding that Plaintiff could
perform a reduced range of light work?

Plaintiff claims “the ALJ’s findings [on exertional limitations] do not
comport with the exertional requirements for light work pursuant to 20
C.F.R. § 404.1567(b).” (Doc. 9 at 7). She argues that a sedentary RFC
would have been the more appropriate finding. (Id.) The Commissioner
disagrees, arguing that the record supports the ALJ’s finding. (R. 11 at 414).
The ALJ concluded that because Plaintiff could lift and carry between
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5-15 pounds and could stand and walk for one hour each at a time and for
two hours at a time in total in an eight hour day, with additional postural
limitations, she exceeded the limitations for sedentary work, resulting in an
RFC of “light work” with “additional limitations.” (R. 32). It is this finding
that Plaintiff challenges (doc. 9 at 7-8), asserting that it is significant because
if she were limited to the full range of unskilled sedentary work, she would
“grid” under the Medical-Vocational Guidelines (“MVG”) (see 20 C.F.R. Pt.
404, Subpt. P, App. 2) as disabled. (Doc. 9 at 6). This argument raises two
issues: first, whether the ALJ correctly found that Plaintiff qualified for
“light work” with “additional limitations”; and second, whether MVG
201.14 applies in this instance.
1.

Light Work Determination

“Sedentary work involves lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles like docket files, ledgers, and
small tools.” 20 C.F. R. § 404.1567(a). It also limits standing or walking to
no more than about two hours of an eight-hour workday. SSR 83-10
(available at 1983 WL 31251, at 5). “Light work involves lifting no more
than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds.” 20 C.F. R. § 404.1567(b). It also provides that

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“the full range of light work requires standing or walking, off and on, for a
total of approximately 6 hours of an 8-hour workday.” SSR 83-10 (available
at 1983 WL 31251, at 6).
The ALJ’s RFC findings discussed above are correct and supported by
the record. On August 19, 2010, Plaintiff’s treating orthopedic physician,
Dr. Morris, referred her to Champion Sports Medicine for a FCE. The
evaluation provides that Plaintiff’s exertional limitations are 5-15 pounds.
(R. 301). It further states her “weight range: 10 to 15 pounds occasional; 5
to 7.5 pounds frequent.” (R. 298). That evaluation resulted in the ALJ
finding that Plaintiff “could lift and carry 7.5 pounds frequently and 15
pounds occasionally, and for shoulder level to overhead, she could lift and
carry five pounds frequently and 10 pounds occasionally.” (R. 29). On
December 16, 2011, a consulting neurologist, Dr. Walid Freji, also
performed an evaluation of Plaintiff. The results of that evaluation were also
consistent with the findings and limitations imposed by the ALJ, particularly
as they relate to the weight, sitting, standing, and walking limitations. (R.
32, 298, 379-94).
To the extent Plaintiff argues that the treatment notes of Dr. Morris
support an RFC for sedentary work (doc. 9 at 7-8), the court disagrees. Dr.

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Morris’s notes consistently indicate that Plaintiff could perform “light
work.”4 (R. 317, 320, 323, 346-49). Ultimately, on September 17, 2010, he
released her to full duty at her school cooking job. (R. 306-12).
In sum, Plaintiff cites no portion of the record supporting that she is
incapable of performing work at exertional limits greater than those of
sedentary work. The court finds that there is substantial evidence upon
which the ALJ based his finding that Plaintiff could perform a reduced range
of light work.
2.

The MVRs

Plaintiff next agues that the ALJ erred in failing to apply the grids –
particularly § 201.14 – for individuals closely approaching advanced age
who could perform only sedentary work with no transferrable skills, which
would lead to a finding that she was disabled. (Doc. 9 at 6-8).
The general rule is that after determining the claimant’s RFC
and ability or inability to return to past relevant work, the ALJ
may use the grids to determine whether other jobs exist in the
national economy that a claimant is able to perform. However,
“[e]xclusive reliance on the grids is not appropriate either when
4

In a June 29, 2010 progress note, Dr. Morris did reference keeping Plaintiff at “light
duty” at work. (R. 288). To the extent Plaintiff argues that the ALJ “conflated” the
August 2010 FCE and Dr. Morris’s reference to “light duty,” which was not intended to
constitute “light work” under the regulations (doc. 9 at 7-8), the court is not impressed.
Dr. Morris specifically checked “light work” on various forms that specifically stated that
“light work” was defined as “[l]ifting 20 pounds maximum with frequent lifting and/or
carrying of objects weighting up to 10 pounds.” (See, e.g., R. 317).
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[the] claimant is unable to perform a full range of work at a
given residual functional level or when a claimant has
non-exertional impairments that significantly limit basic work
skills.”
Phillips v. Barnhart, 357 F.3d 1232, 1242 (11th Cir. 2004) (quoting Francis
v. Heckler, 749 F.2d 1562, 1566 (11th Cir. 1985) (emphasis added) (citing
Broz v. Schweiker, 677 F.2d 1351, 1361 (11th Cir.1982), adhered to sub
nom. Broz v. Heckler, 711 F.2d 957 (11th Cir. 1983)). The Grids provide
administrative notice of the number of unskilled jobs at the various
exertional levels in the national economy. See 20 C.F.R., pt. 404, subpart P,
app. 2, § 200.00(b).
Thus, when all factors coincide with the criteria of a rule, the
existence of such jobs is established. However, the existence of
such jobs for individuals whose remaining functional capacity
or other factors do not coincide with the criteria of a rule must
be further considered in terms of what kinds of jobs or types of
work may be either additionally indicated or precluded.
20 C.F.R. pt. 404, subpart P, app. 2, § 200.00(b).
Plaintiff’s claim is without merit for a number of reasons. First, it
ignores the fact that the ALJ determined that Plaintiff could perform her past
relevant work as a bank teller. (R. 35). This decision was supported by the
testimony of the vocational expert, who testified that someone with
Plaintiff’s limitations could perform her past work as a bank teller. (R. 34,

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60). Plaintiff has failed to demonstrate that she cannot perform her past
relevant work. See 20 C.F.R. § 404.1520(a)(4) (“If we can find that you are
disabled or not disabled at a step, we make our determination or decision
and we do not go on to the next step.”).
Second, there was substantial evidence produced at the administrative
hearing that there were other jobs that Plaintiff could perform in significant
numbers in the national economy, as is required of the Commissioner at step
five. (R. 35-36, 56-62). Plaintiff did not demonstrate that she cannot
perform the other work identified by the vocational expert.
In evaluating Plaintiff, the ALJ looked at the grids. (R. 35).
However, because Plaintiff’s exertional levels fell between the levels for
sedentary and light work, the ALJ correctly determined that the grids could
only be used as a framework for his decision-making. 20 C.F.R. § 404.1569.
It was necessary for him to consult a vocational expert. See Phillips, 357
F.3d at 1242. The expert, Dr. Beadles, testified that given Plaintiff’s age,
education, work experience, and RFC, she could “perform the requirements
of representative occupations” such as check writer, ticket seller, and
cashier/sales clerk. (R. 36, 57-62). Thus, the ALJ was justified in relying on
this testimony to find that Plaintiff “is capable of making a successful

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adjustment to other work that exists in significant numbers in the national
economy.” (R. 36).
To the extent that Plaintiff specifically asserts that the ALJ should
have limited her to sedentary work and should have applied MVG 201.14 to
find her disabled, the court is not impressed. As noted already, the ALJ
found, and the record demonstrates, that while Plaintiff could not perform
the full range of light work, she could perform activities in excess of those
associated with sedentary work. (See R. 32). Specifically, the ALJ found
that Plaintiff could lift and carry five to fifteen pounds, which is greater than
the minimal lifting and carrying requirements of sedentary work. (Id.)
Additionally, the ALJ found Plaintiff could stand and walk for up to four
hours in an eight-hour workday, which exceeds the occasional standing and
walking limitations in sedentary work. (Id.) Accordingly, the ALJ properly
decided not to apply the Grid rules and instead decided to rely on the
testimony of a vocational expert to determine Plaintiff’s ability to perform
other work. This was a correct decision. See, e.g., Phillips, 357 F.3d at
1242-44.
Further, to the extent Plaintiff argues that she should be reclassified
under Grid rule 201.14, her claim is without merit because she has

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transferrable skills. Grid 201.14 applies to individuals who can perform
only sedentary work or less, are closely approaching advanced age, have a
high school education or more that does not provide for direct entry into
skilled work, and past relevant work that is skilled or semi-skilled but those
skills do not transfer to other work. See 20 C.F.R., pt. 404, subpart P, app. 2,
§ 201.14. Dr. Beadles testified that Plaintiff’s past work as a bank teller was
light and skilled and that her skills were transferrable to other work. (R. 57,
61). Thus, Rule 201.14 is not applicable. See Lapica v. Comm’r Soc. Sec.,
501 F. App’x 895, 898 (11th Cir. 2012) (“Rule 201.14 cannot apply,
however, because, by definition, it only applies when an individual lacks
transferable skills.”). Accordingly, the court finds that the Commissioner
has met her burden and that the ALJ’s decision is due to be affirmed as
concerns this challenge. Evans, 551 F. App’x at 524-25.
B.

Plaintiff’s Other Impairments

Plaintiff also claims that the ALJ failed to fully consider the combined
effects of her other severe impairments, including allergic rhinitis,
pharyngitis, and sinusitis. (Doc. 9 at 8). She further claims that there should
have been a finding of an environmental restriction based on those
impairments. (Id.) However, she points to nothing in the record to

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substantiate the alleged effects from these impairments. As noted by the
Eleventh Circuit Court of Appeals, “the mere existence of ... impairments
does not reveal the extent to which they limit [a claimant’s] ability to work
or undermine the ALJ’s determination in that regard.” Moore v. Barnhart,
405 F.3d 1208, 1213 n.6 (11th Cir. 2005). Additionally, there is no
argument, much less evidence, that any alleged environmental restriction
would preclude employment in the jobs that Dr. Beadles testified Plaintiff
could perform. In short, these arguments are unsupported and without merit.
Plaintiff also claims that the ALJ erred in finding that depression was
not a medically determinable impairment that “might reasonably have
affected [her] concentration and stamina in the context of the RFC.” (Doc. 9
at 8-9). Specifically, the ALJ found:
As the claimant has not sought any treatment from a mental
health professional, and she did not report any depression
problems in her function report or hearing testimony, the
undersigned finds that the single reference to depression in her
medical treatment notes from February 2012 does not provide
sufficient documentation of a medically determinable mental
impairment.
(R. 31).
There was limited evidence in the record regarding Plaintiff’s
depression. There is a terse reference to depression and a need to add an

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anti-depressant medication in her medical records from February 10, 2012.
(R. 396). However, Plaintiff denied being depressed or being treated for
depression in her telephone interview with a Disability Determination
Service representative on January 11, 2011.5 (R. 186). Because there was
direct evidence from Plaintiff denying the existence of depression, coupled
with a nearly complete lack of evidence suggesting the existence of
depression, including no mention of depression at the hearing, the ALJ’s
finding that depression was not a medically determinable impairment is
manifestly correct. Substantial evidence supports this finding.
Finally, Plaintiff argues in conclusory fashion that the combined
effects of her back, neck, hip, shoulder, and buttocks pain “might reasonably
have affected [her] concentration and stamina in the context of the RFC.”
(Doc. 9 at 8-9 (citing 20 C.F.R. § 404.1545(c)6)). However, the ALJ
5

Depression was also listed on an undated Adult Disability Report. (R. 155).

6

Section 1545(c) provides:
Mental abilities. When we assess your mental abilities, we first
assess the nature and extent of your mental limitations and restrictions and
then determine your residual functional capacity for work activity on a
regular and continuing basis. A limited ability to carry out certain mental
activities, such as limitations in understanding, remembering, and carrying
out instructions, and in responding appropriately to supervision,
co-workers, and work pressures in a work setting, may reduce your ability
to do past work and other work.

20 C.F.R. § 404.1545(c).
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considered these impairments and found Plaintiff’s claims not to be credible.
This court agrees.
Dr. Freij’s December 2011 evaluation found that Plaintiff could fully
rotate, flex, and extend her cervical spine, and that there was no limitation in
the flexion or extension of her thoracic or lumbar spine. (R. 381). Those
findings were markedly inconsistent with Plaintiff’s contention that she
cannot turn her neck to drive or bend her waist. Plaintiff’s August 2010
FCE also was inconsistent with her conclusory claims. Additionally, the
ALJ noted:
Ms. Little testified that she takes Lyrica daily, but her pharmacy
records show that the only time she filled a prescription for this
medication was on April 1, 2010. (Ex. 7F, Page 6). Her
medical treatment records show that she was prescribed Lyrica
on April 3, 2012, but her pharmacy records … show that she
never filled that prescription. Those records show that the only
medications she has regularly taken to treat her musculoskeletal
problems are Meloxicam, Flexeril, and Tramadol. This
conservative medication regime is clearly inconsistent with the
claimant’s allegations of pain in the 8-9/10 range.
(R. 34). In view of the evidence in the record and the findings of the ALJ,
the court determines that Plaintiff’s claim is without merit.
V.

Conclusion

Premised on the foregoing, the court finds that the determination of
the Commissioner is due to be affirmed. An appropriate order will be
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entered.
DONE, this the 31st day of July, 2015.

___________________________
JOHN E. OTT
Chief United States Magistrate Judge

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