Simmons v. Colvin

Filing 23

MEMORANDUM OPINION AND ORDER entered that the Commissioner's final decision issued April 18, 2016, denying Simmons's applications for PoD and DIB is AFFIRMED under 42 U.S.C. § 405(g) and 1383(c)(3). Signed by Magistrate Judge William E. Cassady on 11/9/2017. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VALERIE JOYCE SIMMONS,
Plaintiff,

:
:

v.

:

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,1

:
:
:

Defendant.

CA 16-00279-C

:
MEMORANDUM OPINION AND ORDER

Social Security Claimant/Plaintiff Valerie Joyce Simmons brought this action
under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision of
the Defendant Commissioner of Social Security (the “Commissioner”) denying her
applications for a period of disability (“PoD”) and disability insurance benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401, et seq., and
supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42
U.S.C. § 1381, et seq. The parties have consented to the exercise of jurisdiction by
the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this
Court. (Doc. 14 (“In accordance with the provisions of 28 U.S.C. § 636(c) and Fed.
R. Civ. P. 73, the parties in this case consent to have a United States Magistrate
Nancy A Berryhill became the Acting Commissioner of Social Security on January 23,
2017. Pursuant to Rule 25(d), Federal Rules of Civil Procedure, Berryhill is substituted for
Carolyn W. Covin as the proper defendant in this case.

1

Judge conduct any and all proceedings in this case, including the trial, order the
entry of a final judgment, and conduct all post-judgment proceedings.”)).
Upon consideration of the briefs of the parties, (Docs. 16 & 19), the
administrative record, (Docs. 11-13), (hereinafter cited as “(R. [page number(s) in
lower-right corner of transcript])”), and the arguments presented during the hearing
held on March 27, 2017, it is determined that the Commissioner’s decision is due to
be AFFIRMED.2
I.

Background

Simmons was born on September 16, 1966, (R. 226 [SSA Ex. 1E]).

The

highest grade of school Simmons completed was the eleventh grade. (R. 231 [SSA
Ex. 2E]). Simmons was employed as an insurance billing clerk, a home health aid,
and a claims processor. (R. 231 [SSA Ex. 3E]).
Simmons filed applications for PoD and DIB with the Social Security
Administration (the “SSA”),3 on March 25, 2013. (R. 57). Simmons, also, filed an

Any appeal taken from this memorandum opinion and order and judgment shall be made
to the Eleventh Circuit Court of Appeals. (See Doc. 26 (“An appeal from a judgment
entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals
for this judicial circuit in the same manner as an appeal from any other judgment of this
district court.”)).

2

“The Social Security Act’s general disability insurance benefits program (‘DIB’) provides
income to individuals who are forced into involuntary, premature retirement, provided they
are both insured and disabled, regardless of indigence. See 42 U.S.C. 423.” Sanders v.
Astrue, No 11-049-N, 2012 WL 4497733, at *3 (S.D. Ala. Sept. 28, 2012).

3

2

application for SSI on March 25, 2013.4 (R. 57). In Simmons’s applications, she
alleged disability beginning on August 15, 2012.5 (R. 57). After Simmons’s claim
was denied, she requested a hearing, which was held before an Administrative Law
Judge (“ALJ”) for the SSA on June 16, 2014. (R. 57). On November 26, 2014, the
ALJ issued an unfavorable decision on Simmons’s claims, finding her “not disabled”
under sections 216(i) and 223(d) of the Social Security Act. (R. 54-75).
Simmons requested review of the ALJ’s decision by the Appeals Council for
the SSA’s Office of Disability Adjudication and Review. (R. 24-27). The Appeals
Council denied Simmons’s request for review on April 18, 2016, which made the
ALJ’s the final decision of the Commissioner. (R. 1-7). On September 30, 2016,
Simmons filed this action pursuant to § 405(g)6 and § 1383(c)(3)7 to review the final

“The Social Security Act's Supplemental Security Income (‘SSI’) is a separate and distinct
program. SSI is a general public assistance measure providing an additional resource to
the aged, blind, and disabled to assure that their income does not fall below the poverty line.
Eligibility for SSI is based upon proof of indigence and disability. See 42 U.S.C. 1382(a),
1382c(a)(3)(A)-(C).” Sanders, 2012 WL 4497733, at *3.

4

“For SSI claims, a claimant becomes eligible in the first month where she is both disabled
and has an SSI application on file. 20 C.F.R. § 416.202–03 (2005). For DIB claims, a
claimant is eligible for benefits where she demonstrates disability on or before the last date
for which she [was] insured. 42 U.S.C. § 423(a)(1)(A) (2005).” Moore v. Barnhart, 405 F.3d
1208, 1211 (11th Cir. 2005) (per curiam).

5

“Any individual, after any final decision of the Commissioner . . . made after a hearing to
which he was a party, irrespective of the amount in controversy, may obtain a review of such
decision by a civil action commenced within sixty days after the mailing to him of notice of
such decision or within such further time as the Commissioner . . . may allow.” 42 U.S.C. §
405(g).

6

7

“The final determination of the Commissioner of Social Security after a hearing under

3

decision of the Commissioner. (Doc. 1, at 1-2).
II.

Standard of Review

“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is supported by substantial evidence and based on proper
legal standards. 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) (citations and
internal quotations omitted). The Court “may not decide the facts anew, reweigh
the evidence, or substitute [its] judgment for that of the [Commissioner].”

Id.

(citations

the

omitted).

“Even

if

the

evidence

preponderates

against

Commissioner’s findings, [the Court] must affirm if the decision reached is
supported by substantial evidence.”

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th

Cir. 1990) (citing Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986); MacGregor
v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986); and Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983)). “Yet, within this narrowly circumscribed role, [the
Court does] not ‘act as automatons.’”

Bloodsworth, 703 F.2d 1233, 1239 (11th Cir.

1983) (citing Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir. 1981), cert. denied, 455
U.S. 912, 102 S. Ct. 1263, 71 L. Ed. 2d 452 (1982)). The Court “must scrutinize the

paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to
the same extent as the Commissioner’s final determinations under section 405 of this title.”
42 U.S.C. 1383(c)(3).

4

record as a whole, [Ware, 651 F.2d at 411]; Lewis v. Weinberger, 515 F.2d 584, 586-87
(5th Cir. 1975), to determine if the decision reached is reasonable, Simmons v.
Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), and supported by substantial evidence,
Scharlow v. Schweiker, 655 F.2d 645, 648 (5th Cir. 1981).” Bloodsworth, 703 F.2d
at 1239.
“In contrast to the deferential review accorded to the [Commissioner’s]
findings of fact, the [Commissioner’s] conclusions of law, including applicable review
standards are not presumed valid.”

Martin, 894 F.2d at 1529 (citing MacGregor,

786 F.2d at 1053; Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir. 1983), Wiggins v.
Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982); Smith v. Schweiker, 646 F.2d 1075,
1076 (5th Cir. Unit A June 1981).

“The [Commissioner’s] failure to apply the

correct legal standard or to provide the reviewing court with sufficient basis for a
determination that proper legal principles have been followed mandates reversal.”
Martin, 894 F.2d at 1529 (citing Gibson v. Heckler, 779 F.2d 619, 622 (11th Cir.
1986); Bowel v. Heckler, 748 F.2d 629, 635-36 (11th Cir. 1984); Smith, 707 F.2d at
1285; Wiggins, 679 F.2d at 1389; Ambers v. Heckler, 736 F.2d 1467, 1470 (11th Cir.
1984)).
The Social Security Regulations outline a five-step, sequential
evaluation process used to determine whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of

5

Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
experience.
Winschel,

631

F.3d

at

1178

(citing

20

C.F.R.

§§

404.1520(a)(4)(i)-(v),

416.920(a)(4)(i)-(v); Phillips v. Barnhart, 357 F.3d 1232, at 1237-39 (11th Cir. 2004)).
III.
1.

“The ALJ Erred in Rejecting the Opinion of Dr. Ney, a Treating

Psychiatrist.”
2.

Claims on Judicial Review

(Doc. 16, at 2).

“The ALJ Improperly Evaluated Ms. Simmons’[s] Complaints of Pain.”

(Doc. 16, at 2).
IV.

Analysis

“At the first step, the ALJ must consider the claimant’s current working
situation. If the claimant is ‘doing substantial gainful activity, [the ALJ] will find
that [the claimant is] not disabled.’”

Phillips, 357 F.3d at 1237

(alterations in

original) (quoting 20 C.F.R. § 404.1520(a)(4)(i) & (b)). “If however, the claimant is
not currently ‘doing gainful activity’ then the ALJ moves on to the second step.”
Phillips, 357 F.3d at 1237. At the first step, the ALJ determined Simmons had “not
engaged in substantial gainful activity since August 15, 2012, the alleged onset
date.”

(R. 59).
At the second step, the ALJ is to “consider the medical severity of [the

6

claimant’s] impairment(s).” 20 C.F.R. § 404.1520(a)(4)(ii). When
considering the severity of the claimant’s medical impairments, the
ALJ must determine whether the impairments, alone or in
combination, “significantly limit” the claimant’s “physical or mental
ability to do basic work skills.” 20 C.F.R. § 404.1520(c). If the ALJ
concludes that none of the claimant’s impairments are medically
severe, the ALJ is to conclude that the claimant is not disabled. 20
C.F.R. § 404.1520(a)(4)(ii) & (c). If, however, the ALJ concludes that
the claimant’s impairments are medically severe, then the ALJ moves
on to the third step.
Phillips, 357 F.3d at 1237 (alterations in original).

At Step Two, the ALJ

determined Simmons had the following severe impairments:
[M]ild to moderate degenerative osteoarthritis and degenerative disc
disease of the cervical and lumbar spine, a history of sarcoidosis now in
remission, fibromyalgia, and a mood disorder with mixed emotional
features.
(R. 59).
At the third step, the ALJ again considers the “medical severity
of [the claimant’s] impairment(s)” in order to determine whether the
claimant’s impairment(s) “meets or equals” one of the listed disabilities.
20 C.F.R. § 404.1520(a)(4)(iii). Although the list is too voluminous to
recite here, the idea is that the listings “streamline[ ] the decision
process by identifying those claimants whose medical impairments are
so severe that it is likely they would be found disabled regardless of
their vocational background.” Bowen v. Yuckert, 482 U.S. 137, 153,
107 S. Ct. 2287, 2297, 96 L. Ed. 2d 119 (1987). If the ALJ concludes
that the claimant’s impairments meet or equal one of the listed
disabilities and meet the duration requirement, the ALJ will conclude
that the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii) & (d). If,
however, the ALJ concludes that the claimant’s impairments do not
meet or equal the listed impairments, then the ALJ will move on to step
four.
Phillips, 257 F.3d at 1238 (alterations in original). At Step Three, the ALJ found

7

that Simmons “does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments” in 20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926. (R. 60).
At the fourth step, the ALJ must assess: (1) the claimant's [RFC];
and (2) the claimant's ability to return to her past relevant work. 20
C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the regulations
define RFC as that which an individual is still able to do despite the
limitations caused by his or her impairments. 20 C.F.R. § 404.1545(a).
Moreover, the ALJ will “assess and make a finding about [the
claimant's RFC] based on all the relevant medical and other evidence”
in the case.
20 C.F.R. § 404.1520(e).
Furthermore, the RFC
determination is used both to determine whether the claimant: (1) can
return to her past relevant work under the fourth step; and (2) can
adjust to other work under the fifth step . . . . 20 C.F.R. § 404.1520(e).
If the claimant can return to her past relevant work, the ALJ will
conclude that the claimant is not disabled.
20 C.F.R. §
404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past
relevant work, the ALJ moves on to step five.
In determining whether [a claimant] can return to her past
relevant work, the ALJ must determine the claimant's RFC using all
relevant medical and other evidence in the case. 20 C.F.R. §
404.1520(e). That is, the ALJ must determine if the claimant is
limited to a particular work level. See 20 C.F.R. § 404.1567. Once
the ALJ assesses the claimant’s RFC and determines that the claimant
cannot return to her prior relevant work, the ALJ moves on to the fifth,
and final, step.
Phillips, 357 F.3d at 1238-39 (alterations in original) (footnote omitted). At the
fourth step, the ALJ assessed that Simmons had the RFC:
[T]o perform many elements of light level work as defined in 20 CFR
404.1567(b) and 416.967(b). However, she cannot perform a “full
range” of such work as described in SSR 83-10. The claimant can sit
for two hours at one time for a total of six hours over a standard 8-hour
workday. She can stand for one hour up to three hours per standard
workday; and she can walk for fifteen to thirty minutes at one given

8

time up to ninety minutes per day. She can stand and/or walk for at
least four hours over an eight-hour day. She can never climb ladders,
ropes, or scaffolds; never crawl; and just occasionally climb stairs or
ramps.
She can bend, crouch, kneel, or stoop no more than
occasionally. She can never work at unprotected heights, around
moving machinery, or with automotive equipment; occasionally push or
pull with the arms; frequently reach or perform find manipulation, and
occasionally reach overhead. She can never reach overhead to lift
more than five pounds with the left upper extremity; and only
occasionally push or pull with the left upper extremity. The claimant
can remember assignments of simple routine repetitive tasks for two
hours at a time. The claimant can occasionally make judgments or
decisions when on the job. The claimant can occasionally handle
changes in the workplace. The claimant can occasionally interact with
the public or supervisors.
(R. 62). Based on this RFC, the ALJ determined Simmons is “unable to perform
any past relevant work.”

(R. 67). At Step Five, the ALJ then determined there

exist significant numbers of jobs in the national economy that Simmons can perform
given her RFC, age, education, and work experience – specifically, router, electrical
assembler, and document preparer. (R. 68). Thus, the ALJ found that Simmons
was not disabled under the Social Security Act. (R. 69).
A.

Claim 1

“‘Medical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of
[the claimant’s] impairments(s), including [the claimant’s] symptoms, diagnosis and
prognosis, what [the claimant] can still do despite impairments(s), and [the
claimant’s] physical or mental restrictions.’”

9

Winschel, 631 F.3d at 1178-79

(alterations in original) (quoting 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)). “The
law of this circuit is clear that the testimony of a treating physician must be given
substantial or considerable weight unless ‘good cause’ is shown to the contrary.”
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citations omitted); see also
20 C.F.R. 404.1527(d)(2) (“Generally, we give more weight to opinions from your
treating sources, since these sources are likely to be the medical professionals most
able to provide a detailed, longitudinal picture of your medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual examinations, such
as consultative examinations or brief hospitalizations.”).

“‘[G]ood cause’ exists

when the: (1) treating physician’s opinion was not bolstered by the evidence; (2)
evidence supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.”

Phillips, 357

F.3d at 1240-41. “When electing to disregard the opinion of a treating physician,
the ALJ must clearly articulate its reasons.”

Id. at 1241.

“Where the ALJ

articulate[s] specific reasons for failing to give the opinion of a treating physician
controlling weight, and those reasons are supported by substantial evidence, there is
no reversible error.”

Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).

Moreover, the ALJ must state with particularity the weight given to
different medical opinions and the reasons therefor. Sharfarz v.
Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per curiam). “In the
absence of such a statement, it is impossible for a reviewing court to

10

determine whether the ultimate decision on the merits of the claim is
rational and supported by substantial evidence.” Cowart v. Schweiker,
662 F.2d 731, 735 (11th Cir. 1981). Therefore, when the ALJ fails to
“state with at least some measure of clarity the grounds for his
decision,” we will decline to affirm “simply because some rationale
might have supported the ALJ’s conclusion.” Owens v. Heckler, 748
F.2d 1511, 1516 (11th Cir. 1984) (per curiam). In such a situation, “to
say that [the ALJ’s] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the record as
a whole to determine whether the conclusions reached are rational.”
Cowart, 662 F.2d at 735 (quoting Stawls v. Califano, 596 F.2d 1209,
1213 (4th Cir. 1979)) (internal quotation marks omitted).
Winschel, 631 F.3d at 1179 (alterations in original).
Simmons argues the ALJ reversibly erred when he did not assign controlling
weight to the opinion of Simmons’s treating physician, Kathryn Ney, M.D. (Doc. 16,
at 2-7). Discharging the requirement that the ALJ “state with particularity the
weight given to different medical opinions and the reasons therefore[,]” Winschel,
631 F.3d at 1179, he assigned no weight to the opinion of Dr. Ney, which was stated
in a “Medical Source Statement-Mental” form dated May 19, 2014, (“MSS-M form”),
(R. 552-54 [SSA Ex. 23F]), and the reasons therefor as follows:
[T]he form in Exhibit 23F is completely inconsistent with the
remainder of the evidence. Even Dr. Ney’s treatment notes fail to
support this extensive degree of limited functioning. Even when the
claimant was not taking medications in Exhibit 16F, the claimant had
good concentration and good hygiene. On the form in Exhibit 23F, Dr.
Ney suggests that these areas are both markedly limited. This is
directly inconsistent. When the claimant [took] her medications as
prescribed, there were even fewer limitations/symptoms suggested.
(R. 67).

Thus, the ALJ determined Dr. Ney’s opinion was conclusory and not

11

bolstered by the evidence.
Simmons argues the ALJ failed to show good cause for rejecting the opinions
of Dr. Ney. (Doc. 16, at 3). The reasons stated by the ALJ for assigning no weight
to Dr. Ney’s opinion are they were “completely inconsistent with the remainder of
the evidence,” “Dr. Ney’s treatment notes fail to support this extensive degree of
limited functioning” and “[e]ven when [Simmons] was not taking medications . . . the
claimant had good concentration and good hygiene;” however, later during
Simmons’s treatment, Dr. Ney suggested her concentration and hygiene were both
“markedly limited,” which was “directly inconsistent,” and “[w]hen [Simmons took]
her medications as prescribed, there were even fewer limitations/symptoms
suggested.”

(R. 67).

In the MSS-M form, Dr. Ney opined Simmons had a marked8 impairment in
regard to restriction of activities of daily living; degree of difficulty in maintain social
functioning; deficiencies of concentration, persistence, or pace resulting in failure to
complete tasks in a timely and appropriate manner; ability to understand, carry out,
and remember instructions; ability to respond appropriately to supervision; ability to
respond appropriately to co-workers; ability to perform simple tasks; and ability to

“Marked” is used in the MSS-M form to describe “[a]n impairment which seriously affects
ability to function independently, appropriately, effectively, and on a sustained basis;
‘marked’ is more than ‘moderate,’ but less than ‘extreme.’” (R. 552 [SSA Ex. 23F]).

8

12

perform repetitive tasks; and Simmons had an extreme9 impairment in regard to
ability to respond appropriately to customary work pressures.
23F]).

(R. 552-53 [SSA Ex.

Dr. Ney opined Simmons would experience one or two episodes of

decompensation in work or work-like settings, which would cause her to withdraw
from that situation or to experience exacerbation of signs and symptoms. (R. 553
[SSA Ex. 23 F]). In addition, Dr. Ney opined Simmons’s medications cause side
effects, which impose some limitations but not to such a degree as to create serious
problems in most instances, Simmons’s impairments or treatment would cause her
to be absent from work more than three days a month, and Simmons’s prognosis was
poor. (R. 552 & 554 [SSA Ex. 23F]).
The medical evidence shows Simmons first reported depression to Sudeep N.
Rao, M.D., during an office visit on July 5, 2012, at which Simmons’s chief complaint
was neck pain, but an ancillary reason for her visit was depression associated with
having to work in pain. (R. 318 [SSA Ex. 4F]).

Later, on June 19, 2013, Edward

M. Schnitzer, M.D., referred Simmons to a mental health specialist. (R. 382 [SSA
Ex. 8F]). As a result, on July 23, 2013, Simmons reported to Dr. Ney, who Simmons
saw for mental health treatment on July 23, 2013; August 21, 2013; November 19,
2013; February 14, 2014; May 15, 2014; and July 17, 2014. (R. 438-442 [SSA Ex.
“Extreme” is used in the MSS-M form to describe “[s]evere impairment of ability to function
independently, appropriately, effectively, and on a sustained basis.’” (R. 552 [SSA Ex.
23F]).

9

13

16F]; R. 555-56 [SSA Ex. 24F]; & R. 632 [SSA Ex. 32F]).
During Simmons’s July 23, 2013, office visit, Dr. Ney completed an initial
assessment of Simmons and noted as to Simmons:
This is an attractively groomed woman in obvious pain. She relates
well to the examiner. She is alert and oriented times four. Expressed
thoughts are goal-oriented without evidence of psychosis. Mood is
depressed and anxious and she states that her symptoms are anxiety,
fear, pain, isolation, and irritability. She denies suicidal ideation.
Cognitive functions, judgment, and insight are grossly intact.
(R. 442 [SSA Ex. 16F]). Dr. Ney’s plan for Simmons was a “trial of amitriptyline to
target depression, anxiety, sleep, and pain,” which would “begin at 10 mg and
advance by 10 mg every week aiming initially for a dosage of 40 mg.”

(R. 442 [SSA

Ex. 16F]).
From Simmons’s August 21, 2013, office visit, Dr. Ney noted Simmons had
poor sleep, appetite, and energy; good grooming and hygiene; anxious and depressed
mood; fluent speech; rational thought processing; normal thought content; good
insight; good judgment; agitated psychomotor activity; full range of affect; no
hallucinations; poor concentration; cooperative attitude; impaired memory; and she
was alert and oriented to place, time, person, and situation. (R. 440 [SSA Ex. 16F]).
Additionally, Dr. Ney noted Simmons worried about things she could not control and
her depression and anxiety were rated at levels six (6) and eight (8), respectively.
(R. 440 [SSA Ex. 16F]).

Dr. Ney’s plan for Simmons was to increase her

amitriptyline dose and for Simmons to continue her stress and anxiety group. (R.

14

440 [SSA Ex. 16F]).
From Simmons’s November 19, 2013, office visit, Dr. Ney noted Simmons had
good sleep, appetite, and energy; good grooming and hygiene; elevated mood; fluent
speech; rational thought processing; normal thought content; good insight; good
judgment; normal psychomotor activity; full range of affect; no hallucinations; good
concentration; cooperative attitude; intact memory; and she was alert and oriented
to place, time, person, and situation. (R. 439 [SSA Ex. 16F]). Additionally, Dr.
Ney noted Simmons’s depression was not like it was, she worried less, the cold made
her pain worse, and she walked one mile per day. (R. 439 [SSA Ex. 16F]).
From Simmons’s February 14, 2014, office visit, Dr. Ney noted Simmons was
“not too good,” she had discontinued her medications, her unemployment benefits
ceased, and she was involved in a car accident. (R. 438 [SSA Ex. 16F]; R. 556 [SSA
Ex. 24F]). Dr. Ney noted Simmons anxiety rated between level five (5) and eight (8)
and depression rated at level seven (7); good grooming and hygiene; anxious and
depressed mood; fluent speech; rational thought processing; normal thought content;
good insight; normal psychomotor activity; full range of affect; no hallucinations;
good concentration; cooperative attitude; grossly intact memory; and she was alert
and oriented to place, time, person, and situation. (R. 440 [SSA Ex. 16F]; R. 556
[SSA Ex. 24F]). Additionally, Dr. Ney noted Simmons’s MDE (major depressive
episode), GAD (generalized anxiety disorder), and chronic pain were under good

15

control until the car accident. (R. 438 [SSA Ex. 16F]; R. 556 [SSA Ex. 24F]). Dr.
Ney’s plan for Simmons was to add a trial of escitalopram. (R. 438 [SSA Ex. 16F];
R. 556 [SSA Ex. 24F]).
From Simmons’s May 15, 2014, office visit, Dr. Ney noted Simmons had been
really depressed, had high anxiety, was in and out of the hospital for colitis, had pain
in her neck and stomach, was diagnosed with sarcoidosis type II, and stated she was
“tired of being in pain.”

(R. 555 [SSA Ex. 24F]). Dr. Ney noted the escitalopram

prescription “did[ not] do anything,” but the amitriptyline helped with Simmons’s
sleep and depression. (R. 555 [SSA Ex. 24F]). Dr. Ney noted Simmons had good
grooming and hygiene; elevated mood; fluent speech; rational thought processing;
normal thought content; good insight; good judgment; agitated psychomotor activity;
full range of affect; no hallucinations; poor concentration; cooperative attitude;
grossly intact memory; and she was alert and oriented to place, time, person, and
situation.

(R. 555 [SSA Ex. 24F]).

Dr. Ney’s plan for Simmons was to add to

Simmons’s medications a trial of nortriptyline. (R. 555 [SSA Ex. 24F]).
From Simmons’s July 17, 2014, office visit, Dr. Ney noted Simmons was still
depressed, slept poorly, had poor energy, had gained weight, did not have
motivation, felt isolated, and missed work and activities. (R. 632 [SSA Ex. 32F]).
Dr. Ney noted Simmons had good grooming and hygiene; elevated mood; fluent
speech; rational thought processing; normal thought content; normal psychomotor

16

activity; full range of affect; no hallucinations; distractible concentration;
cooperative

attitude;

grossly

intact

memory;

no

loose

associations;

no

obsessions/compulsion; no dissociative symptoms; and she was alert and oriented to
place, time, person, and situation.

(R. 632 [SSA Ex. 32F]). Dr. Ney’s plan for

Simmons was to taper and discontinue Simmons’s prescription of nortriptyline and
add a trial prescription of wellbutrin.

(R. 632 [SSA Ex. 32F]).

The levels of mental function limitations indicated by Dr. Ney are not
supported by her clinical notes. For instance, Dr. Ney opined in the MSS-M form
Simmons had marked deficiencies in her activities of daily living, but her clinical
notes indicate Simmons’s grooming and hygiene were always good. (R. 440 [SSA
Ex. 16F]; R. 439 [SSA Ex. 16F]); R. 438 [SSA Ex. 16F]; R. 556 [SSA Ex. 24F]; R. 555
[SSA Ex. 24F]; & R. 632 [SSA Ex. 32 F]). Dr. Ney opined Simmons had a marked
degree of difficulty in maintaining social functioning, but her clinical notes indicate
her speech, thought processing, thought content, insight, judgment, affect, and
attitude were consistently fluent, rational, normal, good, good, full range, and
cooperative, respectively. (R. 440 [SSA Ex. 16F]; R. 439 [SSA Ex. 16F]); R. 438
[SSA Ex. 16F]; R. 556 [SSA Ex. 24F]; R. 555 [SSA Ex. 24F]; & R. 632 [SSA Ex. 32 F]).
Similarly, Dr. Ney’s opinion Simmons’s abilities on a sustained basis in a routine
work setting to understand, carry out, and remember instructions; respond
appropriately to supervision; respond appropriately to co-workers; respond

17

appropriately to customary work pressures; perform simple tasks; and perform
repetitive tasks are not supported by Dr. Ney’s clinical notes in regard to Simmons’s
speech, thought processing, thought content, insight, judgment, affect, and attitude.
(R. 440 [SSA Ex. 16F]; R. 439 [SSA Ex. 16F]); R. 438 [SSA Ex. 16F]; R. 556 [SSA Ex.
24F]; R. 555 [SSA Ex. 24F]; & R. 632 [SSA Ex. 32 F]). In addition, Dr. Ney noted
Simmons’s prescription of amitriptyline had a positive affect on Simmons’s
depression, sleep, and mental status indicators while Simmons’s discontinuation of
her medication had a notably negative affect on Simmons’s mental status indicators.
(Compare R. 439 [SSA Ex. 16F] & R. 555 [SSA Ex. 24F] with R. 438 [SSA Ex. 16F] &
R. 556 [SSA Ex. 24F]).
Lastly, Dr. Ney’s clinical notes are contradicted by other medical evidence in
the record. Within the period documented in Dr. Ney’s clinical notes, on January
10, 2014, Tao Chen, M.D., noted Simmons had a normal mood and an appropriate
affect, (R. 458 [SSA Ex. 18F]); on March 10, 2014, Dr. Chen, again, noted Simmons
had a normal mood and an appropriate affect, (R. 453 [SSA Ex. 18F]); on May 8
2014, Marty McDonald, M.D., noted Simmons had a normal mood and affect, (R. 482
[SSA Ex. 21F]); on May 29, 2014, Dr. Chen noted Simmons had a normal mood and
an appropriate affect, (R. 567 [SSA Ex. 26F]); and on June 26, 2014, Dr. Chen noted
Simmons had a normal mood and an appropriate affect, (R. 576 [SSA Ex. 26F]).
For these reasons, the Court OVERRULES Simmons’s assertion of reversible

18

error in Claim 1.
B.

Claim 2

Under Social Security Ruling 96-7p:
The regulations describe a two-step process for evaluating symptoms,
such as pain, fatigue, shortness of breath, weakness, or nervousness:
•

First, the adjudicator must consider whether there is an
underlying medically determinable physical or mental
impairment(s)—i.e., an impairment(s) that can be
shown by medically acceptable clinical and laboratory
diagnostic techniques—that could reasonably be
expected to produce the individual’s pain or other
symptoms.
The finding that an individual’s
impairment(s) could reasonably be expected to produce
the individual’s pain or other symptoms does not involve
a determination as to the intensity, persistence, or
functionally limiting effects of the individual’s
symptoms.
If there is no medically determinable
physical or mental impairment(s), or if there is a
medically
determinable
physical
or
mental
impairment(s) but the impairment(s) could not
reasonably be expected to produce the individual’s pain
or other symptoms, the symptoms cannot be found to
affect the individual’s ability to do basic work activities.

SSR 96-7p, superseded by SSR 17-2p. 10

The ALJ found Simmons had severe

medical impairments that included mild to moderate degenerative osteoarthritis and
degenerative disc disease of the cervical and lumbar spine, a history of sarcoidosis
now in remission, fibromyalgia, and a mood disorder with mixed emotional features,
which

10

“medically determinable impairments could reasonably be expected to cause

Social Security Ruling 16-3p became effective on March 28, 2016.

19

only some of her alleged symptoms.”

(R. 59 & 63).

[O]nce an underlying physical or mental impairment(s) that
could reasonably be expected to produce the individual’s pain or other
symptoms have been shown, the adjudicator must evaluate the
intensity, persistence, and limiting effects of the individual’s symptoms
to determine the extent to which the symptoms limit the individual’s
ability to do basic work activities. For this purpose, whenever the
individual’s statements about the intensity, persistence, or functionally
limiting effects of pain or other symptoms are not substantiated by
objective medical evidence, the adjudicator must make a finding on the
credibility of the individual’s statements based on a consideration of the
entire case record. This includes the medical signs and laboratory
findings, the individual’s own statements about the symptoms, any
statements and other information provided by treating or examining
physicians or psychologists and other persons about the symptoms and
how they affect the individuals, and any other relevant evidence in the
case record. This requirement for a finding on the credibility of the
individual’s statements about symptoms and their effects is reflected in
20 C.F.R. 404.1529(c)(4) and 416.929(c)(4). These provisions of the
regulations provide that an individual’s symptoms, including pain, will
be determined to diminish the individual’s capacity for basic work
activities to the extent that the individual’s alleged functional
limitations and restrictions due to symptoms can reasonably be
accepted as consistent with the objective medical evidence and other
evidence in the case record.
SSR 96-7p.
The ALJ must not “reject [the claimant’s] statements about the intensity and
persistence of [her] pain or other symptoms or about the effect [her] symptoms have
on [her] ability to work solely because the available objective medical evidence does
not substantiate [her] statements.”

20 C.F.R. § 404.1529(c)(2).

The ALJ must

consider other evidence, in addition to the objective medical evidence, because
“symptoms sometimes suggest a greater severity of impairment than can be shown

20

by objective medical evidence alone.”

20 C.F.R. § 404.1529(c)(3). Such evidence

includes “any symptom-related function limitations and restrictions which [the
claimant], [her] treating or non-treating source, or other persons report, which can
reasonably be accepted as consistent with the objective medical evidence and other
evidence.”

Id.

Relevant factors of the effect of claimant’s symptoms on her

functional abilities include: her daily activities; the location, duration, frequency,
and intensity of her pain or symptoms; any precipitating and aggravating factors;
the type, dosage, effectiveness, and side effects of medication taken by her to
alleviate her pain or other symptoms; her treatment, other than medication, she
receives or has received for relief of her pain or other symptoms; any measures she
uses or has used to relieve her pain or other symptoms; and other factors concerning
her functional limitations and restrictions due to pain or other symptoms.
C.F.R. § 404.1529(c)(3)(i)-(vii).
If a claimant testifies as to his subjective complaints of disabling
pain and other symptoms [. . .] the ALJ must clearly “articulate explicit
and adequate reasons” for discrediting the claimant’s allegations of
completely disabling symptoms. Foote [v. Chater], 67 F.3d [1553,]
1561-62 [(11th Cir. 1995)]. “Although this circuit does not require an
explicit finding as to credibility, . . . the implication must be obvious to
the reviewing court.” [Id.] at 1562 (quoting Tieniber v. Heckler, 720
F.2d 1251, 1255 (11th Cir. 1983)). The credibility determination does
not need to cite “’particular phrases or formulations’” but it cannot
merely 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.’” Foote, 67 F.3d at 1561 (quoting Jamison v.
Bowen, 813 F.2d 585, 588-90 (11th Cir. 1987)).

21

20

Dyer v. Barnhart, 395 F.3d 1206, 1210-11 (11th Cir. 2005).
Simmons argues the ALJ “rejected [her] statements concerning the intensity,
persistence, and limiting effects of her symptoms,” the ALJ’s rejection of her
statements was not “supported by substantial evidence,” and the ALJ “failed to
consider [other statements] that would have supported [her] allegations of pain and
put her reported symptoms in context.”

(Doc. 16, at 7).

While the ALJ chronologically synopsized Simmons’s medical evidence of
record, he, also, articulated his reasons for discrediting her subjective complaints of
pain based on those relevant factors for weighing the effects of her symptoms on her
functional abilities.

(See R. 63-65).

As to Simmons’s daily activities, the ALJ

noted Simmons reported her “God baby stays with [her] from time to time,” (R. 247
[SSA Ex. 5E]; R. 63); she performed her own personal care with some difficulty,
except for her hair, (R. 248-49 [SSA Ex. 5E]; R. 63); she shopped online, (R. 250 [SSA
Ex. 5E]; R. 63); and in November 2013, she reported she walked one mile per day, (R.
439 [SSA Ex. 16F]; R. 63), and Johnson Haynes, M.D., noted Simmons’s exercise was
normal and her ability to do activities of daily living was normal, (R. 408 [SSA Ex.
13F]; R. 63).
As to the location, duration, and frequency of Simmons’s pain, the ALJ noted
Simmons in June 2012 reported to Dr. Rao moderate pain along with some left arm
pain, (R. 308 [SSA Ex. 3F], R. 63); in April 2013, she reported to Dr. Rao her pain

22

rated at six (6) out of a possible ten (10), (R. 365 [SSA Ex. 7F]; R. 64); on September
28, 2013, she reported to Seema Kapur, M.D., she had back pain for one week, (R.
395 [SSA Ex. 10F]; R. 64); on September 29, 2013, she reported back pain when she
presented at USA Children’s and Women’s Hospital, (R. 400 [SSA Ex. 11F]; R. 64);
on December 30, 2013, she presented at Greater Mobile Urgent Care with
complaints of chest pain without mention of back or neck pain, (R. 429-30 [SSA Ex.
15F; R. 64); on March 10, 2014, she reported to Dr. Rao her pain was rated a three
(3) and five (5) out of ten (10) with and without her medications, respectively, (R. 451
[SSA Ex. 18F]; R. 65); on April 23, 2014, she presented to Tangela C. Atkinson, M.D.,
who did not assess neck or back pain, (R. [SSA Ex. 19F]; R. 65); on August 6, 2014,
she presented to Herbert Stone, M.D., without a complaint of neck or back pain, (R.
585 [SSA Ex. 28F]; R. 65); and on August 25, 2014, she presented to Jeffrey D.
Faggard, M.D., with knee and neck pain, (R. 612 [SSA Ex. 30F]; R. 65).
As to the precipitating or aggravating factors of Simmons’s pain, the ALJ
noted she presented to David K. Donahoe, M.D., on April 25, 2013, and May 23 2013,
who noted “pain with range of motion, no crepitance” and, also noted “range of
motion full and painless.”

(R. 366 & 369 [SSA Ex. 7F]; R. 64).

As to the type, dosage, effectiveness, and side effects of Simmons’s
medications, the ALJ noted Simmons, in June 2012, reported to Dr. Rao her
treatment included only prescription NSAIDs, (R. 308 [SSA Ex. 3F]; R. 63), but she

23

reported on July 25, 20212, to Dr. Schnitzer she was prescribed Lortab, (R. 358 [SSA
Ex. 6F]; R. 64); on July 25, 2012, Dr. Schnitzer prescribed her Percocet, (R. 358 [SSA
Ex. 6F]; R. 63-64); on April 17, 2013, she reported to Dr. Schnitzer she tolerates her
medications, and he noted her meds did not cause side effects and prescribed her
Neurontin for her upper extremity pain, (R. 332 & 335 [SSA Ex. 6F]; R. 64); on May
23, 2013, Dr. Donahoe administered a trigger point injection into her left trapezius,
(R. 370 [SSA Ex. 7F]; R. 64); on September 20, 2013, she presented to Bassam A.
Bassam, M.D., who noted she took Flexeril for her neck spasms and Tylenol as
needed for her headaches but did not note she took prescription narcotics, her Elavil
dose was increased to 25 mg., and she was advised to take Tylenol as need for her
headaches, (R. 390-91 [SSA Ex. 9F]; R. 64); on October 23 2013, she presented to Dr.
Chen, who noted Percocet was not effective and prescribed her MsContin and MsIR
without refills, (R. 414 & 416 [SSA Ex. 14F]; R. 64); on December 18, 2013, Dr. Chen
administered to her a cervical epidural steroid injection, (R. 412-13 [SSA Ex. 14F]; R.
64); and on May 29, 2014, Dr. Chen noted Simmons was pleased with her
medications, but he adjusted her medication due to a drug screen that showed she
was positive for THC, (R. 566 & 568 [SSA Ex. 26F]; R. 65).
As to the other treatment for relief of Simmons’s pain, the ALJ noted she
presented to Dr. Schnitzer on July 2012, who noted she attended physical therapy
for one month and it did not provide relief, (R. 358 [SSA Ex. 6F]; R. 64), and on

24

March 2014, she reported to Dr. Chen she attended physical therapy and it helped,
(R. 451 [SSA Ex. 18F]; R. 65).
Therefore, the Court finds the ALJ properly assessed Simmons’s credibility in
regard to her complaints of pain and his credibility determination is supported by
substantial evidence.

For these reasons, the Court OVERRULES Simmons’s

assertion of reversible error in Claim 2.
V.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the
Commissioner’s final decision issued April 18, 2016, denying Simmons’s applications
for PoD and DIB is AFFIRMED under 42 U.S.C. § 405(g) and 1383(c)(3).
Final judgment shall issue separately in accordance with this Order and Rule
58, FED. R. CIV. P.
DONE and ORDERED this the 9th day of November 2017.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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