De Rivera v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 11/19/2015. (PSM)

FILED
2015 Nov-19 PM 01:36
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
TERESA DE JESUS ZAVALA
DE RIVERA,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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7:15-cv-00110-LSC

Memorandum Opinion
I.

Introduction
The plaintiff, Theresa De Jesus Zavala De Rivera, appeals from the decision

of the Commissioner of the Social Security Administration (“Commissioner”)
denying her application for Disability Insurance Benefits (“DIB”). Ms. De Rivera
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. De Rivera was fifty-three years old at the time of the Administrative
Law Judge’s (“ALJ’s”) decision, and she has a grade school education. (Tr. at 66.)
Her past work experiences include employment as a house cleaner, dishwasher,
and floor cleaner. (Tr. at 64–66, 73, 165, 181.) Ms. De Rivera claims that she
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became disabled on December 3, 2008, due to fibromyalgia, arthritis, hypertension,
depression, right arm pain, knee pain, shoulder and back pain, fat in liver, high
blood pressure, high cholesterol, and calcium deficiency in bones. (Tr. at 66, 68–
69, 180.)
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
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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.
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).

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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.
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. De
Rivera meets the nondisability requirements for a period of disability and DIB and
was insured through June 30, 2009. (Tr. at 32.) He further determined that Ms. De
Rivera had not engaged in SGA in the time between the alleged onset of her
disability and the date last insured. (Id.) According to the ALJ, Ms. De Rivera’s
impairment status following right shoulder arthroscopic rotator cuff repair with
residual pain and range of motion limitations was 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. (Tr. at 33.) The ALJ found that several of
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Ms. De Rivera’s claims lacked sufficient evidentiary support, and he determined
that she has the following residual functional capacity: the ability to perform light
work as defined in 20 C.F.R. 404.1567(b) except that she was precluded from
climbing ladders and crawling; she was limited to no more than occasional
overhead reaching and lifting with the right upper extremity; she was precluded
from working around unprotected heights or hazardous machinery; and she was
limited to jobs that do not require the ability to read or speak the English language.
(Tr. at 34.) The ALJ also found that Ms. De Rivera’s subjective complaints of pain
were not entirely credible. (Tr. at 36.)
According to the ALJ, Ms. De Rivera was able to perform her past relevant
work through the date last insured. (Tr. at 37.) In making that determination, the
ALJ enlisted a vocational expert (“VE”) who testified that, when comparing Ms.
De Rivera’s residual functional capacity with the physical and mental demands of
her past work as a hotel housekeeper, she was able to perform that work as actually
and generally performed. (Tr. at 37–38.) The ALJ concluded his findings by stating
that Ms. De Rivera “was not under a ‘disability,’ as defined in the Social Security
Act, at any time from December 3, 2008, the alleged onset date, through June 30,
2009, the date last insured.” (Tr. at 38.)

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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
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
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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,
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. De Rivera alleges that the ALJ’s decision should be reversed and
remanded because she believes that the ALJ improperly applied the pain standard
by relying on opinion evidence over objective evidence and by rejecting Ms. De
Rivera’s testimony that her pain was disabling. Ms. De Rivera also contends that
the ALJ’s application of the pain standard is not supported by substantial evidence.
(Doc. 8 at Page 3.)
Ms. De Rivera asserts that the ALJ’s evaluation of her subjective complaints
of pain was improper. Specifically, Ms. De Rivera alleges that “the ALJ’s decision
that her pain is not disabling does not apply the appropriate standard and is not
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supported by substantial evidence.” (Doc. 8 at Page 6.) Subjective testimony of
pain and other symptoms may establish the presence of a disabling impairment if it
is supported by medical evidence. See Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir.
1995). To establish disability based upon pain and other subjective symptoms,
“[t]he pain standard requires (1) evidence of an underlying medical condition and
either (2) objective medical evidence that confirms the severity of the alleged pain
arising from that condition or (3) that the objectively determined medical condition
is of such a severity that it can be reasonably expected to give rise to the alleged
pain.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (citing Holt v.
Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)); see also Landry v. Heckler, 782 F.2d
1551, 1553 (11th Cir. 1986).
The ALJ is permitted to discredit the claimant’s subjective testimony of pain
and other symptoms if he articulates explicit and adequate reasons for doing so.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also Soc. Sec. Rul. 967p, 1996 WL 374186 (1996) (“[T]he adjudicator must carefully consider the
individual’s statements about symptoms with the rest of the relevant evidence in
the case record in reaching a conclusion about the credibility of the individual’s
statements.”). Although the Eleventh Circuit does not require explicit findings as
to credibility, “‘the implication must be obvious to the reviewing court.’” Dyer,
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395 F.3d at 1210 (quoting Foote, 67 F.3d at 1562). “[P]articular phrases or
formulations” do not have to be cited in an ALJ’s credibility determination, but it
cannot be a “broad rejection which is ‘not enough to enable [the district court or
this Court] to conclude that [the ALJ] considered her medical condition as a
whole.’” Id. (quoting Foote, 67 F.3d at 1562).
In this case, the ALJ found that Ms. De Rivera met the first prong of the
Eleventh Circuit’s pain standard, but he did not believe that the evidence
confirmed the severity of the alleged pain arising from that condition or that any
impairment of such severity could reasonably be expected to give rise to the
disabling pain and other limitations alleged by Ms. De Rivera. (Tr. at 37.) The ALJ
noted Ms. De Rivera’s allegations of pain in her right shoulder, and the record
confirms that she had an on-the-job injury to her right shoulder and hip in August
2008. (Tr. at 35.) After conservative treatment failed to relieve the pain, a
November 2008 MRI showed a right rotator cuff tear which led to Ms. De Rivera
being placed on limited duty and to her undergoing a right arthroscopic rotator cuff
repair, subacromial decompression, and AC joint resection in January of 2009. (Id.)
A follow-up note two weeks after surgery by Dr. William C. Standeffer, Jr., Ms. De
Rivera’s treating physician, indicated “slow progress” and continuing issues with
range of motion and weakness in her rotator cuff. (Tr. at 397–99, 410–12.) In April
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2009, Ms. De Rivera underwent a closed manipulation of the right shoulder. (Tr. at
413.) Dr. Standeffer indicated that the surgery was successful and that this was the
best that could be done under the circumstances. (Id.) In a June 2009 follow-up
visit, Dr. Standeffer noted that an MRI showed no evidence that the rotator cuff
had failed to heal properly, and Ms. De Rivera had reached maximum medical
improvement. (Tr. at 402, 406–07.)
In September 2009, after her date last insured, Ms. De Rivera went to Dr.
Jeffrey C. Davis about her shoulder. (Tr. at 277–78.) At that visit, Ms. De Rivera
showed significant limitation in her range of motion with her right shoulder and
pain with weakness on abduction. (Tr. at 278.) As a result, in October 2009, Dr.
Davis performed a right shoulder manipulation, right shoulder arthroscopy with
capsular releases, removal of large bony fragment in the right anterior shoulder, and
removal of foreign material structure from the right subacromial space on Ms. De
Rivera. (Tr. at 274–75.) In post-operative visits over the following months, Dr.
Davis noted that Ms. De Rivera was doing well but that she still had work
limitations as she recovered from surgery. (Tr. at 273–74.) In January 2010, x-rays
showed adequate repair of the shoulder, which led Dr. Davis to recommend full
duty status following that visit. (Tr. at 271.)

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Ms. De Rivera contends that because these physicians were retained to treat
only her work-related injury, they did not properly consider her subjective
complaints of pain when making assessments regarding her condition. (Doc. 8 at
Page 8.) It is the responsibility of the ALJ, not the doctors, to consider Ms. De
Rivera’s full condition. See Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2011).
The evidence shows, however, that both physicians did give attention to Ms. De
Rivera’s entire medical condition. (Tr. at 269–77, 288–89, 395, 399, 401, 410–12.)
Here, the ALJ considered the medical records and treatment notes from Ms. De
Rivera’s treating physicians and gave them great weight. (Tr. at 35–37.) Neither
doctor ever stated a belief that she was disabled. (Tr. at 36.) While the ALJ noted
that Ms. De Rivera may have continuing shoulder pain and symptoms, it appears
that he fully accounted for those symptoms and factored them into the RFC
assessment. (Tr. at 37.) The opinions of both treating physicians provide the
substantial evidence required to support the ALJ’s credibility determination and
RFC rating. (Tr. at 36–37.)
Ms. De Rivera also contends that the ALJ mischaracterized her reports about
daily activities when making his credibility determination. (Doc. 8 at Page 13–14.)
She reported no issues with personal care, she prepared complete meals with
several courses on a daily basis, she did laundry and other household chores with
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her daughter’s help, she drove when necessary, she went out alone, and she
shopped. (Tr. at 203–09.) The evidence shows that the ALJ properly relied upon
these statements from the Function Report submitted by Ms. De Rivera when
making his decision. (Tr. at 35.) There is no evidence that the ALJ did not also
consider the limitations outlined by Ms. De Rivera in that same report. As such, it
appears that the ALJ did not mischaracterize Ms. De Rivera’s activities.
Next, Ms. De Rivera contends that the ALJ should have considered her
physical therapist’s notes when making a decision about the credibility of her
subjective complaints and the consistency and severity of her pain. (Doc. 8 at Page
16–17.) Even if Ms. De Rivera is correct that the physical therapy relates back to
treatment before her date last insured and that the records cited go to her progress
and ability to work as a result of the injury, there is no indication that the ALJ
would have altered his decision based on the physical therapist’s notes. In fact, the
notes are consistent with the objective medical evidence. While they show that Ms.
De Rivera continued going to physical therapy until early 2010, many of the records
indicate that she was improving from one visit to the next. Ms. De Rivera often
reports feeling good or better than the visit before and only having minor soreness.
(Tr. at 321–22, 324–28, 330–31, 335.) The physical therapist does note that Ms. De
Rivera is having some trouble reaching overhead and lifting her arm, but these
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statements are consistent with the ALJ’s findings that Ms. De Rivera still had some
limitations, but that these limitations did not render her permanently disabled. (Tr.
at 33–34.) Even if the physical therapist’s notes should have been considered in this
case, they appear to support the ALJ’s findings. Thus, any error that the ALJ may
have made in failing to consider the physical therapist’s notes is harmless.
Finally, Ms. De Rivera contends that the ALJ improperly rejected her
testimony based on the fact that she never sought treatment for her right shoulder
after her last visit to Dr. Davis. (Doc. 8 at Page 17.) All of the medical records cited
by Ms. De Rivera in support of this claim show that, while she complained of joint
pain and shoulder pain at subsequent visits to various physicians, there was never a
specific complaint regarding her right shoulder. This evidence therefore also
supports the ALJ’s finding that Ms. De Rivera had no significant complaints of
right shoulder pain after her last visit to Dr. Davis. (Tr. at 36.)
Thus, the ALJ properly applied the Eleventh Circuit pain standard as he
specifically addressed Ms. De Rivera’s allegations of pain in his opinion and
provided explicit and adequate reasons for rejecting her testimony. The objective
medical and other evidence supports the ALJ’s conclusion that Ms. De Rivera’s
condition did not cause disabling limitations and instead shows that she could
perform a reduced range of light work. (Tr. at 37–38.)
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IV. Conclusion
Upon review of the administrative record, and considering all of Ms. De
Rivera’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 November 19, 2015.

_____________________________
L. Scott Coogler
United States District Judge
182184

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