Thomas v. Social Security Administration, Commissioner

Filing 20

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 6/19/2018. (JLC)

FILED
2018 Jun-19 AM 09:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
ANNIE THOMAS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.

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) Case No.: 7:17-CV-0925-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff Annie Thomas, representing herself pro se, brings this action under

42 U.S.C. § 405(g). Ms. Thomas seeks a review of a final adverse decision of the
Commissioner of the Social Security Administration (“Commissioner”), who denied
her application for disability insurance benefits (“DIB”) and supplemental security
income (“SSI”). Ms. Thomas exhausted the administrative remedies available before
the Commissioner. This case is now ripe for judicial review under section 205(g) of
the Social Security Act (the "Act"), 42 U.S.C. § 405(g).
The Court carefully reviewed the record in this case and AFFIRMS the ALJ’s
decision.

II.

RELEVANT BACKGROUND
The alleged onset date is August 20, 2013. (Tr. 104). Mr. Thomas suffers from

numerous impairments, but none that the ALJ found to disable her. (See id. at 106,
114). On August 20, 2013, Ms. Thomas filed an application for Social Security
benefits. (Id. at 104). The Social Security Administration denied that application on
November 27, 2013. (Id.). On April 23, 2015, Administrative Law Judge Cynthia W.
Brown held a hearing. (Id.). Attorney George Harris represented Ms. Thomas at the
administrative level. (Id.). The ALJ issued her decision on July 30, 2015, which was
unfavorable to Ms. Thomas. (Id. at 114). In that opinion, the ALJ found that Ms.
Thomas did not meet the disability standard at Steps Three and Five. (Id. at 107, 113).
Ms. Thomas requested the Appeals Council review the claim. (Id. at 97). They
refused. (Id.). Ms. Thomas filed her complaint in the Northern District of Alabama
on June 5, 2017. (Doc. 1). She is proceeding pro se. (See id. at 4).
III.

STANDARDS
The court’s review of the Commissioner’s decision is narrowly circumscribed.

The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
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if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court.
The ALJ’s legal conclusions, however, are reviewed de novo, because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, the ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.
2d 1143, 1145-46 (11th Cir. 1991).
IV.

STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a

period of disability, a claimant must be disabled as defined by the Social Security Act

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and the Regulations promulgated thereunder.1 The Regulations define “disabled” 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
twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” that “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

(3)

whether the claimant’s impairment meets or equals an impairment
listed by the [Commissioner];

(4)

whether the claimant can perform his or her past work; and

(5)

whether the claimant is capable of performing any work in the

1

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499.
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national economy.
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will
automatically be found disabled if she suffers from a listed impairment.
If the claimant does not have a listed impairment but cannot perform her
work, the burden shifts to the [Commissioner] to show that the claimant
can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
V.

FINDING OF THE ADMINISTRATIVE LAW JUDGE
After considering the record, the ALJ made the following findings:
1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2018.

2.

The claimant has not engaged in substantial gainful activity since
August 20, 2013, the alleged onset date (20 CFR 404.1571 et
seq., and 416.971 et seq.).

3.

The claimant has the following severe impairments: bilateral
carpal tunnel syndrome, cervical and lumbar degenerative disc
disease, osteoarthritis of the right knee, obesity, and degenerative
joint disease of the right shoulder (20 CFR 404.1520(c) and
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416.920(c)).
4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).

5.

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except the claimant can occasionally stoop, crouch,
and kneel but never crawl or climb ladders.

6.

The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).

7.

The claimant was born on [REDACTED] and was 43 years old,
which is defined as a younger individual age 18-49, on the
alleged disability onset date (20 CFR 404.1563 and 416.963).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR
82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10.

Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform
(20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11.

The claimant has not been under a disability, as defined in the
Social Security Act, from August 20, 2013, through the date of
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this decision (20 CFR 404.1520(g) and 416.920(g)).
(Tr. 106-14) (emphasis omitted).
VI.

ANALYSIS
A.

The ALJ Properly Explained How She Applied the SSR 96-7P
Standards

Ms. Thomas’s first argument is that “the ALJ failed to explain how the
standards of SSR 96-7P were applied.” (Doc. 11 at 5) (capitalization and emphasis
omitted). In support, Ms. Thomas cites to various portions of the medical record. (See
id. at 6-7). She contends that she “should have been found disabled based upon her
symptoms alone.” (See id. at 7).
In response, the Commissioner argues that the medical records “[do] not
document the presence of disabling limitations.” (See Doc. 13 at 5) (citing another
source). The Commissioner also posits that the ALJ properly evaluated Ms. Thomas’s
subjective complaints. (See id. at 7-14). After carefully reviewing the arguments, the
Court agrees with the Commissioner.
First, the ALJ stated she applied SSR 96-7P and actually did apply that rule.
(Tr. 107). SSR 96-7P states, in relevant part:
In recognition of the fact that an individual's symptoms can sometimes
suggest a greater level of severity of impairment than can be shown by
the objective medical evidence alone, 20 CFR 404.1529(c) and
416.929(c) describe the kinds of evidence, including the factors below,
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that the adjudicator must consider in addition to the objective medical
evidence when assessing the credibility of an individual's statements:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the individual's
pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to
relieve pain or other symptoms (e.g., lying flat on his or her back,
standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional limitations
and restrictions due to pain or other symptoms.
SSR 96-7P. The ALJ considered the first factor (Tr. 111) (discussing Ms. Thomas’s
daily activities), the second factor (id. at 107-12) (discussing Ms. Thomas’s pain in
the course of the medical record discussion), the third factor (id. at 107, 110) (noting
Ms. Thomas’s struggle with obesity), the fourth factor (id. at 108) (discussing Ms.
Thomas’s medication), the fifth factor (id. at 110) (discussing Ms. Thomas’s medical
treatment such as x-rays and a steroid injection), the sixth factor (id. at 108)
(discussing Ms. Thomas’s sitting versus standing), and the seventh factor (id. at 107-

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08) (discussing Ms. Thomas’s limitations).
Ms. Thomas makes no argument that the ALJ ignored any one piece of
evidence here. (See Doc. 11 at 5-7). Even if she did, “ there is no rigid requirement
that the ALJ specifically refer to every piece of evidence in his decision.” Dyer v.
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (citing another source). Further, it
appears that the ALJ discussed all, or almost all, of the medical records cited in Ms.
Thomas’s brief. (See Doc. 11 at 5-7); (see Tr. 108) (discussing the 2010 carpal tunnel
syndrome tests and diagnosis); (see id. at 108-09) (discussing the June 2011 MRI);
(see id. at 109-10) (discussing the October 2014 medical records and the December
2014 MRI); (see id. at 110) (discussing Dr. Thomason’s medical records). Here, it
is clear that the ALJ reviewed the entire record and made findings in accordance with
the law and supported by substantial evidence. The ALJ did not commit reversible
error when she declined to find Ms. Thomas disabled based on her symptoms alone.
To the contrary, the ALJ’s opinion refers to the record often and her conclusion is
supported by substantial evidence.2 For these reasons, there is no reversible error in
Ms. Thomas’s first argument.

2

The definition of substantial evidence must not be lost on the reader. “[It] is more than
a scintilla, but less than a preponderance.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983). “It is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Id. (citing sources).
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B.

The ALJ Properly Considered Ms. Thomas’s Impairments

Ms. Thomas’s second argument is that “the ALJ failed to properly consider
[her] impairments in combination.” (Doc. 11 at 7) (emphasis and capitalization
omitted). She believes that the ALJ did not consider her entire condition beyond Step
Three and “fail[ed] to properly consider [her] diagnosed bilateral upper and lower
radiculitis, at all.” (See Doc. 11 at 7).
However, the record reflects that the ALJ did consider all of Ms. Thomas’s
impairments in combination. The ALJ specifically stated that “[t]he claimant does not
have an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments.” (Tr. 107) (emphasis omitted). “The ALJ's
determination constitutes evidence that [she] considered the combined effects of
[claimant’s] impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1224-25 (11th Cir.
2002) (citing Jones v. Dept. of Health and Human Servs., 941 F.2d 1529, 1533 (11th
Cir.1991)); see also Tuggerson-Brown v. Comm’r of Soc. Sec., 572 F. App’x 949, 951
(11th Cir. 2014).3

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To the extent that Ms. Thomas is attempting to contest the ALJ’s listing of
impairments, this argument does not work. (See Doc. 11 at 7). Like in Tuggerson-Brown, “the
ALJ found multiple severe impairments and accordingly proceeded to step three of the
evaluation.” Tuggerson-Brown, 572 F. App’x at 951. “Based on [Eleventh Circuit] precedent and
the regulations, therefore, it is apparent that there is no need for an ALJ to identify every severe
impairment at step two.” Id. The ALJ’s Step Two determination was favorable to Ms. Thomas
because it meant that the ALJ kept progressing through the five step process. See id.
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Later on in the opinion – beyond Step Three – the ALJ noted that she
“consider[ed] . . . the entire record.” (Tr. 107) (emphasis omitted); (see id.) (“[T]he
undersigned has considered all symptoms and the extent to which these symptoms can
reasonably be accepted.”); (see also id. at 110). The ALJ also noted that she did so
in accordance with the relevant regulations and Social Security rules. (See id. at 107).
The ALJ’s opinion reflects a detailed recitation of Ms. Thomas’s medical history.
(See id. at 108-112). On review, it would be inappropriate for the Court to disturb this
decision.
Ms. Thomas specifically complains that the ALJ entirely ignored the bilateral
upper and lower radiculitis. (See Doc. 11 at 7). However, the ALJ’s decision shows
differently. The ALJ discussed the perfect motor strength in upper and lower
extremities from the physical consultative examination done by Dr. Robertson. (See
Tr. at 109). She discussed Ms. Thomas’s visit with Dr. Thomason where she
complained of radiating pain in her extremities. (See id. at 110). The ALJ discussed
Dr. Thomason’s findings of strength in Ms. Thomas’s “bilateral upper and lower
extremities.” (See id. at 111). Further, Ms. Thomas has not identified a medical record
that the ALJ overlooked that would change the outcome here. (See Doc. 11 at 7-8).
For these reasons, this Court can find no reversible error under Ms. Thomas’s second
argument.
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C.

Ms. Thomas’s Supplemental Filing

Ms. Thomas filed a copy of her “Application For Disability Access Parking
Privileges.” (Doc. 15 at 2). She did not include any argument along with this filing.
(See generally id.). The Commissioner responded. (See Doc. 16). First, the
Commissioner argues that the filing was not timely. (See id. at 2). Second, the
Commissioner argues that Ms. Thomas waived any arguments stemming from the
filing. (See id. at 2). Third, the Commissioner argues that the supplemental filing does
not compel a remand on the merits. (See id. at 3). Ms. Thomas replied to the
Commissioner by arguing that the Appeals Council did have her application, contrary
to the Commissioner’s contention. (Doc. 17 at 1); (Doc. 16 at 3-4).4 On balance, the
Court agrees with the Commissioner.
The briefing order states that “Plaintiff’s reply brief, if any, [is] to be filed
within 14 days after [the] expiration of time for defendant’s brief.” (Doc. 8 at 1). The
Commissioner brief was due on December 14, 2017. (See id.); (Doc. 10). That means
that Ms. Thomas had to file a reply by December 28, 2017. Ms. Thomas filed her
supplemental evidence on January 18, 2018. (Doc. 15). The filing is untimely.

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The Court ultimately declines to reach this issue, but notes that the record does not
reflect that the Appeals Council received this evidence. (See Tr. 98) (reflecting records before the
Appeals Council from Sealy Management Co., Inc. and Alabama Power but not an application
for disability parking privileges).
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Additionally, Ms. Thomas makes no argument why this application compels a ruling
in her favor. (Doc. 8).
Additionally, the Court has not ignored the filing and has considered it fully.
It simply does not compel a different ruling in this case. The application was from
February 2017. (See Doc. 15 at 2). It consists of little more than three checked boxes
on a standard application form. (See id.). Additionally, the form gives no indication
that these checked boxes relate back to the period before the ALJ’s decision (July 30,
2015) – i.e., that it is chronologically relevant. (See id.); see Hargress v. Soc. Sec.
Admin., Comm’r, 883 F.3d 1302, 1309-10 (11th Cir. 2018) (discussing chronological
relevance). For these reasons, the application is not material to the analysis here and
does not change the result of this case. See Caulder v. Bowen, 791 F.2d 872, 877
(11th Cir. 1986) (“Under the Cherry standard, the claimant must establish that: (1)
there is new, noncumulative evidence; (2) the evidence is ‘material,’ that is, relevant
and probative so that there is a reasonable possibility that it would change the
administrative result, and (3) there is good cause for the failure to submit the evidence
at the administrative level.”) (citing Wright v. Heckler, 734 F.2d 696 (11th
Cir.1984)).5

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In the past, this Court has noted persuasive authority speaking to the admissibility of
evidence of disability from one proceeding in a later proceeding. See Kelley v. Berryhill, No.
6:16-CV-1799-VEH, 2018 WL 905368, *7 n.6 (N.D. Ala. Feb. 15, 2018) (Hopkins, J.) (citing
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VII. CONCLUSION
The Court has carefully reviewed the record and considered all of Ms.
Thomas’s arguments. Ultimately, there is no reversible error through which the Court
can disturb the ALJ’s decision. While today’s decision is undoubtedly disappointing
to Ms. Thomas, a litigant proceeding pro se, this Court is restrained by the law and
the deference afforded to the Commissioner. Accordingly, the Commissioner is due
to be, and hereby is, AFFIRMED.
DONE and ORDERED this the 19th day of June, 2018.

VIRGINIA EMERSON HOPKINS
United States District Judge

sources).
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