Terry v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed against claimant as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/21/2015. (AHI)

FILED
2015 Oct-21 AM 10:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
JIMMY DALE TERRY,
Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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Civil Action No. 7:14-CV-2294-CLS

MEMORANDUM OPINION AND ORDER
Claimant, Jimmy Dale Terry, commenced this action on November 26, 2014,
pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of
the Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”),
and thereby denying his claim for a period of disability, disability insurance, and
supplemental security income benefits. For the reasons stated herein, the court finds
that the Commissioner’s ruling is due to be affirmed.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253

(11th Cir. 1983).
Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the ALJ should have found him to be disabled under the
requirements of Listing 1.04, and that he improperly determined his residual
functional capacity. Upon review of the record, the court concludes that these
contentions are without merit.
A.

Listing 1.04
The ALJ found that claimant
has no impairment which meets the criteria of any of the listed
impairments described in Appendix 1 of the Regulations. Specifically,
the undersigned has considered Listings 1.03 and 1.04. The evidence of
record does not contain any diagnostic findings, signs, symptoms, or
laboratory results that meet any of the listed impairments. Additionally,
there are no opinions in the record from medical experts or any other
type of medical or psychological consultants designated by the
Commissioner, which indicate that the claimant’s impairments alone or
in combination equal a listing.1
Claimant contends that the ALJ should have found him disabled pursuant to

Listing 1.04, which requires proof of:
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:
1

Tr. 85.
2

A. Evidence of nerve root compression characterized by
neuro-anatomic 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.
20 C.F.R. pt. 404, subpt. P, appx. 1, § 1.04 (listings).
The Commissioner acknowledges that claimant has a disorder of the spine,2 and
it cannot be denied that claimant’s spinal disorder has caused him pain. There also
is some evidence of compromise of the nerve root or spinal cord. Soon after
claimant’s injury in December of 2009, an MRI revealed a burst fracture at T11 with
“associated mild spinal stenosis,” but no “definite abnormality of the spinal cord.”3
Additionally, Dr. Oluyinka Adediji, the consultative examiner, stated in August 2013
that x-rays of the thoracic spine revealed that the C7-T1 disc space was “moderately

2

Doc. no. 11 (Commissioner’s brief), at 6.

3

Tr. 302.
3

narrowed.”4 Indulging claimant’s argument that these records constitute substantial
evidence to support spinal cord compromise for a significant period of time (i.e.,
twelve months or more),5 he can satisfy the prefatory criteria of the Listing.
Even so, there is no evidence to satisfy either the A, B, or C criteria of the
Listing. With regard to the A criteria, there is no evidence of motor loss, sensory or
reflex loss, or positive straight-leg-raising test. With regard to the B criteria, there is
no evidence of spinal arachnoiditis. With regard to the C criteria, there is no evidence
of pseudoclaudication that resulted in an inability to ambulate effectively. Because
claimant cannot satisfy the A, B, or C criteria of Listing 1.04, he does not meet that
Listing.
Claimant also asserts that his back and hip impairments, when considered in
combination, are medically equivalent to the impairments described in Listing 1.04.6
Social Security regulations provide the following guidance for evaluating medical
equivalence:
(a) What is medical equivalence? Your impairment(s) is medically
equivalent to a listed impairment in appendix 1 of subpart P of part 404
of this chapter if it is at least equal in severity and duration to the criteria
4

Tr. 473.

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Whether those two records can constitute substantial evidence of spinal cord compromise
is questionable, because there is other evidence affirmatively suggesting that the spinal cord was not
compromised. An MRI on June 28, 2011 revealed “no significant stenosis or impingement” in
claimant’s lumbar spine, and “no central canal stenosis in thoracic spine.” Tr. 451. X-ray results
from December 17, 2011 revealed “no significant narrowing of the spinal canal.” Tr. 427.
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Claimant does not argue functional equivalence.
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of any listed impairment.
(b) How do we determine medical equivalence? We can find medical
equivalence in three ways.
(1)

(i) If you have an impairment that is described in the
Listing of Impairments in appendix 1 of subpart P of part
404 of this chapter, but—
(A) You do not exhibit one or more of the findings
specified in the particular listing, or
(B) You exhibit all of the findings, but one or
more of the findings is not as severe as
specified in the particular listing,
(ii) We will find that your impairment is medically
equivalent to that listing if you have other findings related
to your impairment that are at least of equal medical
significance to the required criteria.

(2) If you have an impairment(s) that is not described in the
Listing of Impairments in appendix 1 of subpart P of part 404 of
this chapter, we will compare your findings with those for closely
analogous listed impairments. If the findings related to your
impairment(s) are at least of equal medical significance to those
of a listed impairment, we will find that your impairment(s) is
medically equivalent to the analogous listing.
(3) If you have a combination of impairments, no one of which
meets a listing described in the Listing of Impairments in
appendix 1 of subpart P of part 404 of this chapter (see §
416.925(c)(3)), we will compare your findings with those for
closely analogous listed impairments. If the findings related to
your impairments are at least of equal medical significance to
those of a listed impairment, we will find that your combination
of impairments is medically equivalent to that listing.

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20 C.F.R. § 416.926(a)-(b). See also 20 C.F.R. § 404.1526(a)-(b).
The impairments resulting from claimant’s hip and back conditions, even when
considered together, are not of equal medical significance to Listing 1.04. Claimant
undeniably has suffered injury to his spinal cord and hip, and those injuries
undeniably have resulted in some pain and limitation of function. Those limitations,
however, are better addressed through the ALJ’s residual functional capacity finding.
They do not have the same medical significance as the neurological abnormalities
addressed by Listing 1.04.
B.

Residual Functional Capacity Finding
The ALJ found that, despite his impairments, claimant retained the residual

functional capacity to
perform sedentary work . . . except the operation of foot controls
bilaterally is limited to no more than occasional. The claimant can never
climb ladders, ropes, or scaffolds, and can never crouch or crawl. The
claimant can no more than occasionally climb ramps and stairs, balance,
stoop, and kneel. The claimant can have no more than occasional
exposure to extreme cold and heat, humidity, wetness, excessive
vibrations, and pulmonary irritants such as dust, fumes, odors, and
gases. The claimant can never operate or control hazardous, moving
machinery, can do no commercial driving, and can never work around
unprotected heights.7
Claimant asserts that the residual functional capacity finding was not supported
by substantial evidence because his pain and other subjective symptoms prevent him

7

Tr. 85-86.
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from performing even the limited range of work specified by the ALJ.

To

demonstrate that pain or another subjective symptom renders him disabled, 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 be reasonably 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 an ALJ discredits subjective testimony on pain, “he
must articulate explicit and adequate reasons.” Hale v. Bowen, 831 F.2d 1007, 1011
(11th Cir. 1987) (citing Jones v. Bowen, 810 F.2d 1001, 1004 (11th Cir. 1986);
MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986)). Furthermore, “[a]fter
considering a claimant’s complaints of pain, the ALJ may reject them as not
creditable, and that determination will be reviewed for substantial evidence.”
Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (citing Wilson v. Heckler,
734 F.2d 513, 517 (11th Cir. 1984)) (alteration supplied).
The ALJ properly applied these legal principles. He found that claimant’s
medically determinable impairments could reasonably be expected to cause the
symptoms claimant alleged, but he nonetheless concluded that claimant’s statements
about the intensity, persistence, and limiting effects of his symptoms were not

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credible to the extent they were inconsistent with the residual functional capacity
finding.8 The ALJ reasoned that claimant’s physicians had encouraged him to
increase his activities, and that his pain appeared to be well-controlled with
medication.9 The ALJ also noted that, while claimant testified to feeling groggy and
being unable to concentrate while on his pain medications, he had not complained
about those side effects to his pain management physician. The ALJ attempted to
accommodate any side effects claimant might experience by limiting him to sedentary
activity.10 The ALJ also concluded that claimant’s daily activities — including
personal care, preparing simple meals, grocery shopping, hunting, and helping care
for his children — were “not as limited as one would expect given the complaints of
totally disabling symptoms.”11 Finally, the ALJ considered the opinion of Dr.
Adediji, the consultative examiner, but assigned even more limitations than the doctor
recommended, in order to accommodate claimant’s reported ability to stand and walk
for only three hours during an eight-hour work day.12
Claimant disagrees with the ALJ’s interpretation of the medical records and the
ALJ’s conclusions about his ability to work. Even though there is some evidence to
8

Tr. 86.

9

Tr. 87.

10

Tr. 88.

11

Id.

12

Id. Dr. Adediji recommended a limited range of light work, while the ALJ imposed a
limited range of sedentary work.
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support the limitations alleged by claimant, there also is substantial evidence to
support the ALJ’s determinations. Claimant can only succeed by demonstrating that
the ALJ’s decision lacks substantial evidentiary support in the record, and claimant
has not done that. Most of the evidence relied upon by claimant consists of his own
testimony about his pain and limitations, or notations by the treating and examining
physicians that he experiences pain or suffers from an impairment in his back and/or
hip. However, the mere existence of an impairment, a medical condition, or even
pain does not determine disability. Instead, the relevant consideration is the effect of
claimant’s impairment, or combination of impairments, on his ability to perform
substantial gainful work activities. See 20 C.F.R. §§ 404.1505(a), 416.905(a)
(defining a disability as “the inability to do 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”). See also Bowen v. Yuckert, 482 U.S. 137, 146
(1987) (“The [Social Security] Act ‘defines “disability” in terms of the effect a
physical or mental impairment has on a person’s ability to function in the
workplace.’”) (quoting Heckler v. Campbell, 461 U.S. 458, 459-60 (1983)). Here,
the ALJ’s conclusion that claimant’s pain and underlying condition did not result in
disabling functional limitations is supported by substantial evidence.

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Consistent with the foregoing, the court concludes the ALJ’s decision was
based upon substantial evidence and in accordance with applicable legal standards.
Accordingly, the decision of the Commissioner is AFFIRMED. Costs are taxed
against claimant. The Clerk is directed to close this file.
DONE this 21st day of October, 2015.

______________________________
United States District Judge

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