Hamilton v. Colvin

Filing 26

Order re: 1 Complaint filed by Barbara E. Hamilton stating that the decision of the Commissioner of Social Security denying Plaintiffs claim for supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 6/1/2017. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BARBARA E. HAMILTON,
Plaintiff,
vs.
NANCY BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

*
*
*
*
* CIVIL ACTION NO. 16-000289-B
*
*
*
*
*
*
ORDER

Plaintiff

Barbara

E.

Hamilton

(hereinafter

“Plaintiff”),

seeks judicial review of a final decision of the Commissioner of
Social

Security

denying

her

claim

for

supplemental

security

income under Title XVI of the Social Security Act, 42 U.S.C. §§
1381, et seq.

On May 2, 2017, the parties consented to have the

undersigned conduct any and all proceedings in this case.
21).
conduct

Thus,
all

the

action

proceedings

was
and

referred
order

the

to

the

entry

(Doc.

undersigned
of

judgment

to
in

accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil

1

Nancy Berryhill became the Acting Commissioner of Social
Security on January 23, 2017.
Pursuant to Rule 25(d), Federal
Rules of Civil Procedure, Nancy Berryhill should be substituted
for Carolyn W. Colvin as the defendant in this suit. No further
action need be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g).

Procedure 73.

Upon careful consideration of the administrative

record and the memoranda of the parties, it is hereby ORDERED
that the decision of the Commissioner be AFFIRMED.
I.

Procedural History
Plaintiff protectively filed her application for benefits

on December 28, 2012, alleging disability beginning December 28,
2012, 2 based on problems with her feet, back, and legs, high
blood pressure, depression, and anxiety.

(Doc. 14-1 at 2, 6). 3

Plaintiff’s application was denied and upon timely request, she
was granted an administrative hearing before Administrative Law
Judge Jerome L. Munford (hereinafter “ALJ”) on July 7, 2014.
(Doc.

13

at

211).

Plaintiff

attended

the

hearing

with

counsel and provided testimony related to her claims.
at

217).

A

vocational

expert

hearing and provided testimony.

(“VE”)

also

(Doc. 13

appeared

(Doc. 13 at 248).

her

at

the

On October

16, 2014, the ALJ issued an unfavorable decision finding that
Plaintiff is not disabled.

(Doc. 13 at 195).

The Appeals

Council denied Plaintiff’s request for review on April 21, 2016.
(Doc. 13 at 9).

Therefore, the ALJ’s decision dated October 16,

2

Plaintiff amended her onset date from September 24, 2009, to
December 28, 2012. (Doc. 14-1 at 2; Doc. 13 at 216).

3

The Court’s citations to the transcript in this order refer to
the pagination assigned in CM/ECF, not the page numbers assigned
by the Agency. Because the transcript is divided into separate
documents, the Court’s citations include the appropriate CM/ECF
document number.

2

2014, became the final decision of the Commissioner.
Having

exhausted

her

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

Oral argument

was conducted on May 31, 2017 (Doc. 25), and the parties agree
that this case is now ripe for judicial review and is properly
before

this

Court

pursuant

to

42

U.S.C.

§§

405(g)

and

1383(c)(3).
II.

Issues on Appeal
1. Whether the ALJ erred in failing to find
Plaintiff’s depression and headaches to
be severe impairments?
2.

Whether the ALJ’s RFC for a range of
light work is supported by substantial
evidence?

III. Factual Background
Plaintiff was born on October 13, 1962, and was fifty-one
years of age at the time of her administrative hearing on July
7, 2014.

(Doc. 14-1 at 2; Doc. 13 at 211, 217-18).

graduated from high school taking regular classes.

Plaintiff
(Doc. 13 at

218; Doc. 14-1 at 7).
Plaintiff worked from 2007 to 2009 as an in-home child care
provider.

(Doc. 14-1 at 7; Doc. 13 at 218).

In 2003, she

worked as an equipment operator and a flagger for a construction
company, and from 1984 to 1999, she worked as a grader at a
catfish plant.

(Doc. 14-1 at 7; Doc. 13 at 219-20).

At the

administrative hearing, Plaintiff testified that she cannot work

3

due to pain in her legs, knee, back, shoulder, and neck.

(Doc.

13 at 221).
IV. Standard of Review
In reviewing claims brought under the Act, this Court’s
role

is

a

limited

determining

1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).

4

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla, but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

whether

substantial

evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the

4

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).

4

Commissioner’s decision.

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
V.

Statutory And Regulatory Framework
An individual who applies for Social Security disability

benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

423(d)(1)(A);

a

The

see

Social

sequential

also

20

Security

evaluation

C.F.R.

§§

regulations
process

determining if a claimant has proven his disability.

for

20 C.F.R.

§§ 404.1520, 416.920.
The
engaged

claimant
in

must

first

substantial

prove

gainful

that

activity.

he

or
The

she

has

second

not
step

requires the claimant to prove that he or she has a severe
impairment or combination of impairments.

If, at the third

step, the claimant proves that the impairment or combination of
impairments
claimant

is

meets

or

equals

automatically

a

found

education, or work experience.

listed

impairment,

disabled

regardless

then

the

of

age,

If the claimant cannot prevail

5

at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their past
relevant work.
1986).
the

Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.

In evaluating whether the claimant has met this burden,

examiner

must

consider

the

following

four

factors:

(1)

objective medical facts and clinical findings; (2) diagnoses of
examining

physicians;

claimant’s

age,

(3)

education

evidence
and

work

of

pain;

history.

and
Id.

(4)

the

Once

a

claimant meets this burden, it becomes the Commissioner’s burden
to prove at the fifth step that the claimant is capable of
engaging in another kind of substantial gainful employment which
exists in significant numbers in the national economy, given the
claimant’s

residual

work history.
1985).

functional

capacity,

age,

education,

and

Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.

If the Commissioner can demonstrate that there are such

jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled.
Apfel, 190 F.3d 1224, 1228 (11th

Cir. 1999).

Jones v.

See also Hale v.

Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
VI.

Discussion
A. The ALJ did not err in failing to find
that Plaintiff’s depression and headaches
are severe impairments.
In

this

case,

Plaintiff

argues

6

that

the

ALJ

erred

in

failing to find that her depression and headaches are severe
impairments.

(Doc. 17 at 2, 4-6).

Specifically, with respect

to her depression, Plaintiff argues that the ALJ acknowledged
that

she

had

been

diagnosed

with

depression,

but

improperly

found that her condition was no more than a slight abnormality
that

would

limitations.

not

be

(Id.).

expected

to

produce

more

than

minimal

With respect to her headaches, Plaintiff

argues that the ALJ did not even discuss this impairment and
erred in failing to find it severe given the multiple diagnoses
of headaches and migraines in her medical records.

(Id.).

The Commissioner counters that the ALJ expressly considered
Plaintiff’s

depression,

and

his

finding

that

Plaintiff’s

depression was non-severe is supported by substantial evidence.
(Doc. 18 at 7).
ALJ

did

not

The Commissioner further argues that, while the

discuss

Plaintiff’s

headaches,

Plaintiff

never

mentioned this impairment as a basis for her disability claim,
and, further, that there is no evidence that she ever suffered
disabling symptoms from this impairment.

(Doc. 18 at 8-9).

Having carefully reviewed the record in this case, the Court
finds that Plaintiff’s claim is without merit.
Turning,

first,

to

Plaintiff’s

argument

related

to

her

depression, the record shows that the ALJ found at step two of
the sequential evaluation process that Plaintiff had the severe
impairments of degenerative disc disease of the cervical and

7

lumbar
(Doc.

spine,
13

osteoarthritis

at

197).

The

of

ALJ

the

left

further

knee,

and

obesity.

discussed

the

evidence

relating to Plaintiff’s depression and determined that it was
not a severe impairment.

(Doc. 13 at 198).

At the outset, the Court notes that, even if Plaintiff’s
depression is severe, the ALJ’s failure to classify it as a
severe

impairment

at

step

process is not fatal.
LEXIS

115951,

*14,

two

of

the

sequential

evaluation

See Bennett v. Astrue, 2013 U.S. Dist.
2013

WL

4433764,

*5

(N.D.

Ala.

2013)

(“‘[n]othing requires that the ALJ must identify, at step two,
all of the impairments that should be considered severe’ and,
even

if

the

ALJ

erred

by

not

recognizing

every

severe

impairment, the error was harmless since he found at least one
such impairment.”); Ferguson v. Astrue, 2012 U.S. Dist. LEXIS
139135, *25, 2012 WL 4738857, *9 (N.D. Ala. 2012) (“[B]ecause
step two only acts as a filter to prevent non-severe impairments
from disability consideration, the ALJ’s finding of other severe
impairments allowed him to continue to subsequent steps of the
determination

process

and

his

failure

to

list

headaches

as

severe does not constitute reversible error because, under the
Social Security regulations, the ALJ at later steps considers
the

combined

effect

of

(emphasis in original).
degenerative

disc

disease

all

the

claimant’s

impairments.”)

As stated, the ALJ found Plaintiff’s
of

the

8

cervical

and

lumbar

spine,

osteoarthritis of the left knee, and obesity to be severe at
step

two

and

then

proceeded

on

to

the

next

steps

where

he

considered all of her impairments in combination, including her
depression.

(Doc. 13 at 197, 202-04).

Thus, even if severe,

the ALJ’s failure to find Plaintiff’s depression severe at step
two is harmless.
Furthermore, in order for an impairment to be severe, it
must be more than a slight abnormality or a combination of
slight

abnormalities

“that

causes

no

C.F.R.

§

functional

limitations.”

20

added).

Indeed,

must

it

more

than

416.924(c)

“significantly

minimal
(emphasis

limit[]”

an

individual’s “ability to do basic work activities.” 20 C.F.R. §
416.920(c) (emphasis added).

“It is [the] Plaintiff’s burden

to prove the existence of a severe impairment, and she must do
that by showing an impact on her ability to work.” Marra v.
Colvin, 2013 U.S. Dist. LEXIS 105669, *13-14, 2013 WL 3901655,
*5 (M.D. Fla. 2013) (citing Bowen v. Yuckert, 482 U.S. 137, 146
(1987)); see also Barnhart v. Thomas, 540 U.S. 20, 24 (2003)
(“At

step

two,

the

SSA

will

find

nondisability

unless

the

claimant shows that he has a ‘severe impairment,’ defined as
‘any

impairment

significantly
ability

to

or

limits
do

combination
[the

basic

of

claimant’s]

work

impairments
physical

activities.’”)

9

or

which
mental

(quoting

§§

404.1520(c), 416.920(c)); McDaniel v. Bowen, 800 F.2d 1026,
1031 (11th Cir. 1986) (“Unless the claimant can prove, as early
as step two, that she is suffering from a severe impairment,
she will be denied disability benefits.”).
“In order to evaluate the severity of a mental impairment,
the

Commissioner’s

‘special

regulations

technique’

Willis

v.

91497,

*10,

or

Commissioner
2016

WL

require

so-called
of

Soc.

3752182,

(citing 20 C.F.R. § 404.1520a)).

application

‘paragraph

Sec.,

*3

the

2016

(M.D.

U.S.

Fla.

“Under the

B’

of

a

criteria.”
Dist.

July

14,

LEXIS
2016)

special technique,

the ALJ will rate the degree of functional limitation in four
broad

functional

areas:

activities

of

daily

living;

social

functioning; concentration, persistence, or pace; and episodes
of decompensation.”

Id. (citing 20 C.F.R. § 404.1520a(c)(3)).

The degree of limitation in the first three areas are rated on a
five-point scale of none, mild, moderate, marked, and extreme,
and the fourth area is rated as none, one or two, three, four or
more.

See id. (citing 20 C.F.R § 404.1520a(c)(4)).

If the

degree of limitation in the first three functional areas is none
or mild, and the fourth area is none, the ALJ generally will
conclude, as he did here, that the impairment is not severe,
unless

the

evidence

otherwise

indicates

more

than

limitation in ability to do basic work activities.
(citing 20 C.F.R. § 404.1520a(d)(1)).
10

a

minimal
See id.

The ALJ’s decision must

incorporate
technique.

findings

and

conclusions

based

on

the

special

See id. (citing 20 C.F.R. § 404.1520a(e)(4)).

In this case, the record shows that the ALJ followed the
special

technique

impairment

set

for

forth

assessing
in

20

CFR

the
§§

severity

of

404.1520a,

a

mental

416.920a

and

considered the four broad functional areas of the paragraph B
criteria (i.e., Plaintiff’s activities of daily living; social
functioning; concentration, persistence, or pace; and episodes
of decompensation).
examined

both

the

(Doc. 13 at 198).
medical

evidence

and

In doing so, the ALJ
the

opinion

evidence

related to Plaintiff’s depression.
Specifically, the record shows that the ALJ considered the
March 20, 2013, report of consultative psychologist, Dr. Kathy
Ronan,

Ph.D.,

who

evaluated

Plaintiff

and

reported

Plaintiff appeared intoxicated at her appointment.

that

The report

states: “Ms. Hamilton seemed to be on something, slurred, and
could not even repeat something I just discussed with her.”
(Doc. 15 at 57).

Dr. Ronan further observed that Plaintiff

“presented as groggy, and in pain. She grunted, walked slowly,
rolled on the couch, and moaned.”

(Doc. 15 at 60).

Dr. Ronan

stated that, “[s]ome of this may have been exaggerated, but this
was difficult to tell in that she also appeared impaired and
either high or overmedicated. She drooled at one point.”
15 at 60).

(Doc.

Dr. Ronan noted her concern that Plaintiff was “drug

11

seeking”

“as

she

has

been

to

numerous

places

with

various

complaints and has received benzos and opioids, and she reports
a history of addiction.”

(Doc. 15 at 60).

While at the evaluation, Plaintiff reported to Dr. Ronan
that she had applied for disability because of her back, legs,
and

depression,

depression,
Plaintiff
alcohol,

and

that
that

reported
marijuana,

treatment.

she
it

a

was

was

taking

medication

helping.

history

of

cocaine,

and

(Doc.

substance
pills,

15

at

abuse,

and

for

57-58).

including

substance

(Doc. 15 at 59; Doc. 13 at 231).

her

abuse

Plaintiff also

reported living on her own, shopping, cooking, and cleaning.
(Doc. 15 at 61; Doc. 13 at 230).
Dr. Ronan’s examination findings revealed slurred speech,
grogginess, flat mood and affect, eyes repeatedly drifting shut,
impaired

attention

evaluation,

impaired

and

concentration,

memory,

impaired

dosing

thought

during

processes,

the
and

impaired fund of information, intoxication or overmedication,
below

normal

(Doc.

15

at

abstraction,
60-61).

and

Dr.

impaired

Ronan

judgment

noted

that

and

insight.

Plaintiff

was

“difficult to assess given that she was either intoxicated or
overly medicated during the evaluation.”

(Doc. 15 at 61).

Dr.

Ronan opined that “[w]hile she seems to have some depression and
anxiety usually caused by situational factors, I cannot rule out
the impact substance addiction and possible active use has had

12

or may have on her emotional or psychiatric state.

She has

notably been to numerous medical professionals over time with
complaints of depression/anxiety for which she has gotten Xanax
several times, and pain for which she has gained opioids, and I
am concerned of current addiction.”

(Doc. 15 at 61).

Dr. Ronan

opined that Plaintiff’s overuse of prescribed medications would
impact any real depression that she may have and would make it
difficult

to

assess

her

complaints

of

complaining of pain to get substances.
Ronan

diagnosed:

rule

out

major

pain

as

she

may

(Doc. 15 at 61).

depression,

recurrent,

be
Dr.

with

psychotic features, rule out opioid or benzodiazepine or other
substance

dependence,

rule

out

pain

disorder,

rule

out

malingering, rule out learning or cognitive disorder, and rule
out personality disorder.
Plaintiff’s
twelve

depression

months

with

(Doc. 15 at 62).

was
proper

fair

to

good

treatment,

Her prognosis for
for

if

improvement
she

truly

in
has

depression, and poor for resolution in twelve months if she has
substance addiction, as treatment has not been successful in the
past.

(Doc. 15 at 62).

Dr. Ronan recommended a medical review

of all of Plaintiff’s medications, noting that they impact her
mental status and that she may be drug seeking.
62).

(Doc. 15 at

Dr. Ronan further recommended that Plaintiff receive drug

screening and individual therapy, as well as referral to a pain
management

program

which

emphasizes

13

non-pharmacological

interventions.
Plaintiff’s

(Doc.

15

at

examination

62).

Dr.

findings

Ronan

exaggeration of symptoms and intoxication.

that

invalidated

were

concluded

by

(Doc. 15 at 63).

She opined that Plaintiff would have the ability to carry out
simple and complex instructions if not intoxicated.
63).

(Doc. 15 at

This evidence is consistent with the ALJ’s finding that

Plaintiff’s depression is non-severe.
Also

consistent

with

the

ALJ’s

finding

is

Plaintiff’s

testimony at the administrative hearing that her depression is
better

and

is

no

longer

an

issue.

(Doc.

13

at

234).

In

addition, the findings of State Agency psychological consultant,
Dr. Steven Dobbs, Ph.D., support the ALJ’s finding.

Dr. Dobbs

reviewed Plaintiff’s records, including her 2010-2011 records
from

West

Alabama

examination,

and

Mental

found

that

Health
her

Center

mental

and

Dr.

Ronan’s

impairments

severe and cause no more than mild difficulties.

are

not

(Doc. 13-1 at

12).
The

Court

has

also

reviewed

Plaintiff’s

medical

records

from West Alabama Mental Health Center showing diagnoses in 2010
and 2011 of major depression with psychotic features.
2 at 3-13).

(Doc. 14-

However, Plaintiff’s treatment records also reflect

conservative treatment with medication only and Plaintiff’s noncompliance

with

that

treatment.

(Doc.

14-2

at

3-13).

The

foregoing substantial evidence supports the ALJ’s finding that

14

Plaintiff’s depression is non-severe.
Turning

now

to

headaches/migraines,

Plaintiff’s

while

it

is

argument
true

that

related

to

her

the

did

not

ALJ

discuss this impairment in his decision, the record reveals that
Plaintiff did not allege headaches as a ground for disability
either in her application or during her hearing before the ALJ.
(Doc. 14-1 at 6; Doc. 13 at 221).

“[A]n ALJ need not consider

impairments when the claimant fails to put the ALJ on notice of
their existence and . . . an ALJ is under no obligation to
investigate a claim not presented at the time of the application
for benefits and not offered at the hearing as a basis for
disability.”

Jones v. Astrue, 863 F. Supp. 2d 1142, 1153 (S.D.

Ala. 2012) (citing Street v. Barnhart, 133 Fed. Appx. 621, 627–
28 (11th Cir. 2005)).
Furthermore,

even

now,

Plaintiff

alleges

no

facts

and

points to no evidence in the record to support her claim that
her headaches impinge on her ability to work.
treatment
with

notes

reflect

medication,

they

diagnoses

do

not

and

While Plaintiff’s

treatment

indicate

that

of

she

migraines

suffers

any

limitations due to headaches or migraines in excess of the RFC.
(Doc. 14-2 at 4-13; Doc. 15 at 40-41).
pointed

to

no

medical

source

Indeed, Plaintiff has

identifying

any

functional

limitations resulting from her headaches or migraines.
well

settled

that

a

plaintiff

15

bears

the

ultimate

“It is

burden

of

establishing

disability.”

Jones,

863

F.

Supp.

2d

at

1152

(citing Russell v. Astrue, 331 Fed. Appx. 678, 679 (11th Cir.
2009); Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991);
Brady

v.

Heckler,

724

F.2d

914,

918

(11th

Cir.

1984)).

“In

addition, the plaintiff must provide corroborative medical or
other

evidence

of

his

(citations omitted).

impairments

in

the

record.”

(Id.)

This, Plaintiff has failed to do.

In sum, Plaintiff has failed to satisfy her burden of proof
with respect to the alleged severity of either her depression or
her headaches.

Although Plaintiff has produced medical records

documenting her diagnoses and treatment for these conditions,
none of the records indicates that any of these impairments is
severe and significantly limits her ability to do basic work
activities.

Thus, Plaintiff’s claim must fail.

B. The ALJ’s RFC for a range of light work
is supported by substantial evidence.
Last, Plaintiff argues that the ALJ’s RFC for a range of
light work is not supported by substantial evidence.
at 4).

Specifically, Plaintiff argues that the RFC “does not

account for [her] mental impairments or severe pain.”
at

(Doc. 17

7).

Having

reviewed

the

record

at

length,

(Doc. 17
the

Court

disagrees.
Residual functional capacity is a measure of what Plaintiff
can do despite his or her credible limitations.

16

See 20 C.F.R. §

404.1545.

Determinations of a claimant’s residual functional

capacity are reserved for the ALJ, and the assessment is to be
based upon all the relevant evidence of a claimant’s remaining
ability to work despite his or her impairments, and must be
supported by substantial evidence.
Supp.

2d

1323,

1331 (S.D.

Ala.

See Beech v. Apfel, 100 F.
2000)

(citing

20

C.F.R.

§

404.1546 and Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997)); Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571, *10,
2012 WL 997222, *4 (M.D. Ala. March 23, 2012).
determined
claimant

the

bears

plaintiff’s

residual

the

of

burden

Once the ALJ has

functional

demonstrating

capacity,

that

decision is not supported by substantial evidence.
Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985).

the

the

ALJ’s

See Flynn v.
Plaintiff has

failed to meet her burden in this case.
In

his

decision,

the

ALJ

found

that

Plaintiff

has

the

residual functional capacity (“RFC”) to perform a range of light
work

which

stooping

allows

and

for

the

crouching;

no

following
upper

limitations:
right

“occasional

extremity

overhead

reaching or pushing or pulling; no climbing; no left leg pushing
or pulling; and no unprotected heights.”

(Doc. 13 at 200).

Contrary to Plaintiff’s argument, the record shows that the ALJ
expressly considered both her mental impairment (depression) and
her pain from her physical impairments in determining the RFC.
First, with respect to Plaintiff’s depression and migraine

17

pain, the non-severity of those impairments has been established
and discussed in detail herein and will not be repeated here.
Based on the evidence detailed above, the Court finds that the
ALJ’s RFC with respect to Plaintiff’s non-severe impairments of
depression
evidence,

and
and

migraine
Plaintiff

pain
has

is

failed

supported
to

show

by

substantial

any

limitations

caused by these impairments in excess of the RFC.5
Second, with respect to Plaintiff’s claim that the RFC does
not

account

for

her

pain

from

her

remaining

impairments, Plaintiff’s claim likewise fails.
a

claim

based

on

disabling

subjective

physical

When evaluating

symptoms,

the

ALJ

considers medical findings, a claimant’s statements, statements
by the treating physician or other persons, and evidence of how
the subjective symptoms affect the claimant’s daily activities
and ability to work.

20 C.F.R. § 416.929(a).

In a case where a

claimant attempts to establish disability through his or her own
testimony concerning pain or other subjective symptoms, a threepart standard applies.

That standard requires: “(1) evidence of

an underlying medical condition and either (2) objective medical
evidence that confirms the severity of the alleged
5

pain [or

The Court further notes that, based on the testimony of the
vocational expert, the ALJ found that Plaintiff could perform
the jobs of “cashier” and “ticket taker,” both of which are
unskilled. (Doc. 13 at 205, 255). The Court finds that these
unskilled jobs fully accommodate Plaintiff’s non-exertional
impairments.

18

other subjective symptoms] 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

[or

other

subjective

symptoms].”

Hubbard

v.

Commissioner of Soc. Sec., 348 Fed. Appx. 551, 554 (11th Cir.
2009) (unpublished) (quoting Holt v. Sullivan, 921 F.2d 1221,
1223

(11th

Cir.

1991)).

The

Social

Security

regulations

provide:
[S]tatements
about
your
pain
or
other
symptoms will not alone establish that you
are disabled; there must be medical signs
and laboratory findings which show that you
have a medical impairment(s) which could
reasonably be expected to produce the pain
or other symptoms alleged and which, when
considered with all of the other evidence
(including statements about the intensity
and persistence of your pain or other
symptoms which may reasonably be accepted as
consistent
with
the
medical
signs
and
laboratory
findings),
would
lead
to
a
conclusion that you are disabled.
20

C.F.R.

404.1529(a)

(2013).

“A

claimant’s

subjective

testimony supported by medical evidence that satisfies the . . .
standard

is

disability.”

itself

sufficient

to

support

a

finding

of

Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir.

1995).
When
symptoms,

evaluating
the

ALJ

a

also

claim

based

must

consider

on

disabling

all

of

the

subjective
claimant’s

statements about his or her symptoms and determine the extent to

19

which the symptoms can reasonably be accepted as consistent with
the objective medical evidence.

See 20 C.F.R. § 404.1528.

If

an ALJ decides not to credit a claimant’s testimony about his or
her subjective symptoms, “the ALJ must articulate explicit and
adequate reasons for doing so or the record must be obvious” as
to the finding.

Strickland v. Commissioner of Soc. Sec., 516

Fed.

832

Appx.

829,

(11th

Foote, 67 F.3d at 1562).
discrediting

testimony

Cir.

2013)

(unpublished)

(citing

Failure to articulate the reasons for
related

to

pain

or

other

subjective

symptoms requires, as a matter of law, that the testimony be
accepted as true.

Holt, 921 F.2d at 1223.

The Eleventh Circuit has held that the determination of
whether

objective

medical

impairments

could

reasonably

be

expected to produce subjective symptoms is a factual question to
be

made

limited

by

the

review

in

Secretary
the

and,

courts

therefore,

to

supported by substantial evidence.”
1545,

1549

(11th

Cir.

1985),

ensure

“subject

that

the

only

to

finding

is

Hand v. Heckler, 761 F.2d

vacated

on

other

grounds

and

reinstated sub nom., Hand v. Bowen, 793 F.2d 275 (11th Cir.
1986).

A reviewing court will not disturb a clearly articulated

finding related to a claimant’s claims of disabling subjective
symptoms, with substantial supporting evidence in the record.
See Nye v. Commissioner of Social Sec., 524 Fed. Appx. 538, 543
(11th Cir. 2013) (unpublished).

20

“Regulation

96–7p

and

20

C.F.R.

§§

404.1529(c)(4)

and

416.929(c)(4) require the ALJ to consider the consistency of
subjective

complaints.”

Lindsey

v.

Colvin,

2016

U.S.

Dist.

LEXIS 129547 *12-13, 2016 WL 5253219, *5 (N.D. Ala. Sept. 22,
2016) (quoting Majkut v. Commissioner of Soc. Sec., 394 Fed.
Appx. 660, 663 (11th Cir. 2010)).

However, SSR 16-3p is a new

ruling which replaces SSR 96-7p and provides as follows: “[w]e
are eliminating the use of the term ‘credibility’ from our subregulatory policy, as our regulations do not use this term.

In

doing so, we clarify that subjective symptom evaluation is not
an examination of an individual’s character.

Instead, we will

more closely follow our regulatory language regarding symptom
evaluation.”

SSR 16-3p, 2016 SSR LEXIS 42016, WL 1119029, *1.

The effect of the new ruling has been described as follows:
Both SSR 96-7p and SSR 16-13p direct that
evaluation
of
a
claimant’s
subjective
symptoms shall consider all evidence in the
record.
Both Rulings also incorporate the
regulations, 20 C.F.R. §§ 404.1529(c)(3) and
416.929(c)(3), that identify factors to be
considered in evaluating the intensity,
persistence
and
functionally-limiting
effects
of
the
symptoms,
including
a
claimant’s daily activities; the nature,
duration, frequency and intensity of her
symptoms;
precipitating
and
aggravating
factors; and the type of medication and
other treatment or measures used for the
relief of pain and other symptoms, i.e., the
familiar factors identified in Polaski v.
Heckler, 739 F.2d 1320 (8th Cir. 1984). But
while SSR 96-7p expressly provided that a
credibility finding was required to be made

21

under those regulations, SSR 16-3p expressly
provides that use of the term “credibility”
was
being
eliminated
because
the
SSA
regulations did not use it. 81 F.R. at
14167.
SSR
16-3p
further
provides:
In
[eliminating reference to “credibility”], we
clarify that subjective symptom evaluation
is not an examination of an individual’s
character. Instead, we will more closely
follow our regulatory language regarding
symptom evaluation. Id. SSR 16-3p also
expressly provides that the ALJ may not make
conclusory
statements
about
having
considered the symptoms, or merely recite
the factors described in the regulations.
Rather, the determination or decision must
contain specific reasons for the weight
given to the individual’s symptoms, be
consistent, and supported by the evidence,
and be clearly articulated so the individual
and any subsequent reviewer can assess how
the adjudicator evaluated the individual’s
symptoms. Id. at 14171.
Martsolf v. Colvin, 2017 U.S. Dist. LEXIS 2748, *14-15, 2017 WL
77424,

*5

(W.D.

Mo.

Jan.

9,

2017);

see

also

McVey

v.

Commissioner of Soc. Sec., 2016 U.S. Dist. LEXIS 93884, *14,
2016 WL 3901385, *5 (M.D. Fla. July 19, 2016) (holding that ALJ
erred in basing her credibility determination on the fact that
the

claimant

sobriety,

a

had

made

matter

inconsistent

which

was

statements

unrelated

to

concerning

his

his

impairment);

Lindsey, 2016 U.S. Dist. LEXIS 129547 at *13, 2016 WL 5253219 at
*5 (“[i]nconsistencies and conflicts in the record evidence and
the claimant’s statements about her symptoms may provide a basis
for discounting the extent of claimant’s statements.”).
At her administrative hearing, Plaintiff testified that she

22

can no longer work because she has severe pain in her legs, left
knee, back, shoulder, and neck.

(Doc. 13 at 221).

In support

of her argument that the RFC does not account for this pain,
Plaintiff points to the following evidence which she alleges
establishes that she cannot work and is disabled:
(1) treatment notes from 2008 to 2014 showing diagnoses of
lumbar strain (with an otherwise normal lumbar spine), cervical
spondylosis,

degenerative

changes

in

the

thoracic

spine,

degenerative joint disease, chronic pain to the lower lumbar
spine with muscle spasms, radiculopathy, neuropathy, lumbago,
and reports of pain on range of motion;
(2)

treatment

notes

from

2010

showing

diagnoses

of

cervicalgia (neck pain) and myalgia, as well as complaints in
2012 of tenderness and pain in her right shoulder;
(3) treatment notes from 2009 to 2013 showing diagnoses of
chronic bilateral lower leg pain and thrombophlebitis of the
lower extremities;6 and
(4) treatment notes from 2010 to 2014 showing diagnoses of
recurrent

left

knee

pain

with

flexion

(with

small

lobulated

meniscal cyst), degenerative joint disease of the left knee, and
osteoarthritis with tenderness on palpation and pain on range of
6

The Court notes that the increase in pain reported by Plaintiff
in and around January 2014 was related to injuries sustained in
a motor vehicle accident that occurred on January 13, 2014.
(Doc. 15-2 at 57-99).

23

motion.

(Doc. 17 at 4-7; Doc. 15-2 at 47-99; Doc. 14-2 at 186).

According to Plaintiff, the ALJ erred in not accounting for the
pain caused by these impairments in the RFC.
To the contrary, the record shows that the ALJ expressly
considered these treatment records and found that Plaintiff’s
claims of disabling pain were not consistent with these records
or the remaining substantial evidence and, thus, the ALJ was
correct

in

discounting

(Doc. 13 at 202-03).
multiple

“normal”

Plaintiff’s

claims

of

disabling

pain.

The ALJ specifically noted Plaintiff’s
clinical

findings

on

musculoskeletal

examination; 7 a 2012 MRI of Plaintiff’s left knee showed a small
cyst associated with a probable small tear (Doc. 14-2 at 186); a
2014 MRI of Plaintiff’s lumbar spine showed degenerative disc
disease at L4-L5 and L-5-S1, with no acute lumbar spine process
and no stenosis at any level (Doc. 15-2 at 121); Plaintiff’s
treatment warranted no more than conservative measures for her
pain, including medication, occasional injections, and physical
therapy (Doc. 15-2 at 55, 61, 95-98, 110-15);8 Plaintiff admitted

7

The record confirms that Plaintiff frequently had essentially
normal
musculoskeletal
findings
with
some
tenderness
on
palpation. (Doc. 15-2 at 50, 55, 78, 83, 94; Doc. 15 at 5, 9).

8

Plaintiff’s medical records confirm that she received only
conservative treatment with medications, occasional injections,
and physical therapy. Further, on January 15, 2014, Plaintiff’s
treating physician refused to refill her prescription for Lortab
until Plaintiff made an appointment with an orthopedist, which
she did not do. (Doc. 15-2 at 69).
24

that the medications helped (Doc. 13 at 233); while Plaintiff
uses a cane, which helps with balance, it was not prescribed by
a

physician

(Doc.

13

at

222,

234-35);

although

Plaintiff

testified that she could only stand/walk for thirty minutes and
was unable to raise her right arm, her physical therapy notes
showed that she was able to perform therapeutic exercises for
thirty to forty-five minutes (Doc. 13 at 202-03, 223-25; Doc.
15-2 at 110, 116); Plaintiff testified that she suffers “severe”
pain only about twice a week (Doc. 13 at 246); and Plaintiff
reported

activities

of

daily

living

that

include

independently, cooking, cleaning, and shopping.
61).

living

(Doc. 15 at

This evidence belies Plaintiff’s claims of debilitating

pain.
Having reviewed the record at length, the Court concludes
that substantial evidence supports the ALJ’s determination that,
even with Plaintiff’s severe impairments of degenerative disc
disease of the cervical and lumbar spine, osteoarthritis of the
left knee, and obesity, she can still perform a range of light
work

with

failed

to

the
show

impairments
restrictions
right

stated
that

exceed
to

extremity

restrictions.
any

the

limitations

RFC

“occasional
overhead

Moreover,

and

caused

Plaintiff

by

her

physical

are

not

accommodated

stooping

and

crouching;

reaching

or

pushing

or

has

by

no

the

upper

pulling;

no

climbing; no left leg pushing or pulling; and no unprotected

25

heights.”

(Doc. 13 at 200).

Based on the foregoing, Plaintiff’s claim must fail.
VII.

Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for
supplemental security income be AFFIRMED.
DONE this 1st day of June, 2017.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

26