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
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