Devillier v. Berryhill

Filing 25

Order re: 1 Complaint filed by Scott J. Devillier stating that the decision of the Commissioner of Social Security denying Plaintiff's claim for a period ofdisability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 5/24/18. (mpp) Copies to counsel

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SCOTT J. DEVILLIER,
Plaintiff,
vs.
NANCY BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

*
*
*
*
*
*
*
*
*
*
*

CIVIL ACTION NO. 17-00287-B

ORDER

Plaintiff Scott J. Devillier (hereinafter “Plaintiff”), seeks
judicial review of a final decision of the Commissioner of Social
Security denying his claim for a period of disability, disability
insurance benefits, and supplemental security income under Titles
II and XVI of the Social Security Act, 42 U.S.C. §§ 401, et seq.,
and 1381, et seq.

On April 11, 2018, the parties consented to

have the undersigned conduct any and all proceedings in this case.
(Doc. 21).
conduct

Thus, the action was referred to the undersigned to

all

proceedings

and

order

the

entry

of

judgment

in

accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil
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 History1
Plaintiff filed his applications for benefits in August 2013,

alleging disability beginning January 27, 2012, based on “broken
neck, surgical cage, protruding disc in back, PTSD, depression,
suicidal thoughts, emotional withdrawal from family and friends,
trouble socializing, anger problems, and rotator cuff.”
at 268, 321).
request,

he

(Doc. 11

Plaintiff’s application was denied and upon timely
was

granted

an

administrative

hearing

before

Administrative Law Judge Jeff Hughes (hereinafter “ALJ”) on July
24, 2015.

(Id. at 112).

Plaintiff attended the hearing, waived

his right to counsel, and provided testimony related to his claims.
(Id. at 117).

A vocational expert (“VE”) also appeared at the

hearing and provided testimony.

(Id. at 157).

On February 29,

2016, the ALJ issued an unfavorable decision finding that Plaintiff
is

not

disabled.

(Id.

at

93).

The

Appeals

Plaintiff’s request for review on June 2, 2017.

Council

denied

(Id. at 6).

Therefore, the ALJ’s decision dated February 29, 2016, became the
final decision of the Commissioner.
Having exhausted his administrative remedies, Plaintiff timely
filed the present civil action.
conducted on May 16, 2018.

(Doc. 1).

(Doc. 24).

Oral argument was

This case is now ripe for

judicial review and is properly before this Court pursuant to 42

1

The Court’s citations to the transcript in this order refer to
the pagination assigned in CM/ECF.

2

U.S.C. §§ 405(g) and 1383(c)(3).
II.

Issue on Appeal
Whether the ALJ reversibly erred in failing to expressly
consider Listing 1.04A?

III. Factual Background
Plaintiff was born on January 2, 1976, and was thirty-nine
years of age at the time of his administrative hearing on July 24,
2015.

(Doc. 11 at 112, 316).

Plaintiff graduated from high school

and received training as a welder.

(Id. at 120).

Plaintiff last worked from 2013 to 2014 as a light maintenance
worker at a bar.2
welder.

(Id. at 122).

Prior to that, he worked as a

(Id. at 122, 144-46, 308, 323).

Plaintiff testified that he can no longer work because it hurts
his back, neck, and legs when he lifts heavy objects, and he cannot
sit for long periods of time.
for pain.

(Id. at 149-50).

He takes medication

(Id. at 128-29, 138, 149).

IV. Standard of Review
In reviewing claims brought under the Act, this Court’s role
is a limited one.

The Court’s review is limited to determining 1)

2

The ALJ found that Plaintiff had not engaged in substantial
gainful activity since January 27, 2012, the alleged onset date.
(Doc. 11 at 95). The ALJ also found that Plaintiff had worked after
his alleged onset date, and although the work did not rise to the
level of substantial gainful activity, it showed that Plaintiff
retained the ability to perform some work after the alleged onset
date. (Id.). At his administrative hearing, Plaintiff testified
that he was injured while working at the Flora-Bama on July 21,
2014, when he lifted a barrel and hurt his back. (Id. at 121-22).

3

whether the decision of the Secretary is supported by substantial
evidence and 2) whether the correct legal standards were applied.3
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).

A court

may not decide the facts anew, reweigh the evidence, or substitute
its judgment for that of the Commissioner.
F.2d 1065, 1067 (11th Cir. 1986).

Sewell v. Bowen, 792

The Commissioner’s findings of

fact must be affirmed if they are based upon substantial evidence.
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

conclusion.”).

would

accept

as

adequate

to

support

a

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 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

benefits must prove his or her disability.

3

Security

disability

20 C.F.R. §§ 404.1512,

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

416.912.

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. §§

423(d)(1)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).
Social

Security

regulations

provide

a

five-step

The

sequential

evaluation process for determining if a claimant has proven his
disability.

20 C.F.R. §§ 404.1520, 416.920.

The claimant must first prove that he or she has not engaged
in substantial gainful activity.

The second 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 meets or
equals a listed impairment, then the claimant is automatically found
disabled regardless of age, education, or work experience.

If the

claimant cannot prevail 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.
1005 (11th Cir. 1986).

Jones v. Bowen, 810 F.2d 1001,

At the fourth step, the ALJ must make an

assessment of the claimant’s RFC.
3d 1232, 1238 (llth Cir. 2004).

See Phillips v. Barnhart, 357 F.

The RFC is an assessment, based on

all relevant medical and other evidence, of a claimant’s remaining
ability to work despite his impairment.

5

See Lewis v. Callahan, 125

F.3d 1436, 1440 (llth Cir. 1997).
If a claimant meets his or her burden at the fourth step, it
then 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 functional
capacity, age, education, and work history.

Sryock v. Heckler, 764

F.2d 834, 836 (11th Cir. 1985). 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.

Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).

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 commit reversible error
in failing to expressly consider Listing
1.04A.
In his brief, Plaintiff argues that he meets Listing 1.04A for

disorders of the spine, given that he suffered a herniation of his
lumbar spine in 2008 and has had escalating lumbar degenerative
disc disease since that date.

Plaintiff maintains that the ALJ

erred in failing to expressly evaluate his impairments under that
Listing.

(Doc. 12 at 2).

The Government counters that the ALJ

considered all of Plaintiff’s impairments and found that they did
not meet any Listing, which impliedly includes Listing 1.04A, and

6

that the ALJ’s finding is supported by substantial evidence.
17 at 5).

(Doc.

Having reviewed the record at length, the Court finds

that Plaintiff’s claim is without merit.
When

a

claimant,

such

as

Plaintiff

in

the

instant

case,

contends that he has an impairment meeting the listed impairments,
he must “present specific medical findings that meet the various
tests listed under the description of the applicable impairment.”
Bell v. Bowen, 796 F.2d 1350, 1353 (11th Cir. 1986).
of a listed impairment is not sufficient.
936 F.2d 1215, 1218 (11th Cir. 1991).

A diagnosis

See Carnes v. Sullivan,
The record must contain

corroborative medical evidence supported by clinical and laboratory
findings.

Id.; accord Sullivan v. Zebley, 493 U.S. 521, 530 (1990)

(“Each impairment [in the Listings] is defined in terms of several
specific medical signs, symptoms, or laboratory test results.

For

a claimant to show that his impairment matches a listing, it must
meet all of the specified medical criteria.

An impairment that

manifests only some of those criteria, no matter how severely, does
not qualify.”).
An ALJ’s failure to expressly address whether a claimant meets
a particular Listing is not error where substantial evidence in the
record supports the conclusion that the claimant did not meet the
Listing.
*20,

2017

See McCorkle v. Berryhill, 2017 U.S. Dist. LEXIS 38617,
WL

1035684,

*8

(N.D.

Ala.

Mar.

17,

2017)

(citing

Turberville ex rel. Rowell v. Astrue, 316 Fed. Appx. 891, 893 (11th

7

Cir. 2009) (“We conclude that — though the ALJ did not explicitly
discuss

why

Rowell

did

not

actually

meet

Listing

112.05

—

substantial record evidence supports that Rowell’s condition did
not actually or functionally meet Listing 112.05 and, therefore,
supports

the

ALJ’s

ultimate

conclusion

that

Rowell

was

not

disabled.”); Keane v. Commissioner of Soc. Sec., 205 Fed. Appx.
748, 750 (llth Cir. 2006) (an ALJ’s finding that a claimant’s
impairments did not meet a particular listing can be implied);
Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986) (“[W]hile
the ALJ did not explicitly state that the appellant’s impairments
were not

contained

in

the

listings,

such

a

determination

was

implicit in the ALJ’s decision . . . There may be an implied finding
that a claimant does not meet a listing.”); Barron v. Sullivan, 924
F.2d 227, 230 n.3 (11th Cir. 1991) (“it would be helpful to
appellate courts if the ALJ would specifically tie his findings to
particular listings that the claimant has argued,” but it is not
error to fail to do so where “the evidence supports the conclusions
of the ALJ, despite the lack of any particular discussion of
[Plaintiff’s] impairment as it relates to [the claimed] Listing.”).
To meet Listing 1.04A, a claimant must establish the following
criteria:
1.04 Disorders of the spine (e.g., herniated
nucleus
pulposus,
spinal
arachnoiditis,
spinal stenosis, osteoarthritis, degenerative
disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve

8

root (including the
spinal cord. With:

cauda

equina)

or

the

A.
Evidence
of
nerve
root
compression
characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is
involvement of the lower back, positive
straight-leg
raising
test
(sitting
and
supine). . . .
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04A.
In the instant case, the ALJ found that Plaintiff had the
severe impairments of degenerative disc disease of the cervical
spine, status-post fusion; degenerative disc disease of the lumbar
spine; a history of mild degenerative joint disease of the right
shoulder; a history of alcohol abuse in full recent remission;
depressive disorder; antisocial personality disorder; and obesity.
(Doc.

11

at

95).

The

ALJ

found,

however,

that

Plaintiff’s

impairments, whether considered individually and in combination,
did not meet, medically equal, or functionally equal any of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
CFR 416.924, 416.925, and 416.926).

(Id. at 96).

The ALJ further found that Plaintiff has the RFC to perform a
range of light work with the following additional limitations:
Plaintiff requires the option to sit or stand at will; he cannot
climb ropes, ladders, or scaffolds; he can occasionally stoop,
crouch, and crawl; he can frequently climb stairs, balance, and
kneel; he can occasionally reach overhead bilaterally; he must avoid
9

concentrated exposure to vibration; he must avoid all exposure to
hazards; he is limited to simple (work at skill levels one and two),
low stress (few changes in the workplace and occasional simple
decision

making)

jobs

only;

and

he

is

limited

to

occasional

superficial contacts with the general public and coworkers.

(Id.

at 97).
Although the ALJ did not explicitly reference Listing 1.04A
(disorders of the spine), the undersigned finds, based upon a
thorough review of the record, that the ALJ implicitly found that
Plaintiff’s impairments, whether alone or in combination, do not
meet or medically equal Listing 1.04A.

The Court further finds

that the substantial evidence in the record supports that finding.
First, with respect to the objective record evidence, x-rays
of

Plaintiff’s

lumbar

spine

taken

in

2012

showed

minimal

levoscoliosis with a loss of lordotic curve, but otherwise normal.
(Id. at 401).

X-rays of Plaintiff’s lumbar spine taken in 2014

showed spurs and narrowing of the disc space in the thoracic region
at L1 but no acute fracture or changes to L5.

(Id. at 595-96).

A

CT scan of Plaintiff’s lumbar spine taken in July 2014 showed a
disc protrusion/herniation at L5-S1 with moderate to moderately
advanced right sub articular recess stenosis with no evidence of
nerve root compression and no acute injury, moderate to moderately
advanced right caudal foraminal stenosis with no evidence of nerve
root compression, and a small, broad central disc protrusion at L4-

10

5.

(Id. at 102, 516).

An MRI of Plaintiff’s lumbar spine taken in

August 2014 showed scoliosis related to spondylosis at L5-S1 with
a mild bony disc protrusion, limited to mild impingement of both S1
nerve roots suggested, some crowding of exiting L5 roots, a slight
to limited bony protrusion with a slight annular tear and disc
protrusion at L4-5, slightly displaced L5 nerve roots without gross
impingement, disc dehydration, and lesser spondylosis at other
levels without additional encroachment concerns. (Id. at 103, 630).
In addition, on August 18, 2012, consultative examiner, Dr.
Melvin

Williams,

M.D.,

found

that

Plaintiff

was

able

to

sit

comfortably, had 4/5 strength in his right shoulder, had normal
motor strength, grip, and manipulation, and negative straight leg
raise bilaterally.

(Id. at 442, 444).

X-rays of Plaintiff’s right

shoulder taken on August 20, 2012, were normal, with the exception
of mild joint arthropathy.
On

October

19,

2013,

(Id. at 438).
consultative

examiner,

Dr.

Celtin

Robertson, M.D., noted Plaintiff’s complaints of neck pain and found
that Plaintiff was able to get on and off the examination table,
that he had no swelling in his extremities, a negative straight leg
raise, no tenderness in the cervical or lumbar area, 5/5 motor
strength overall except in the lower extremities, which was 4/5,
and that he had normal grasp and manipulation and normal sensation.
(Id.

at

502-04).

Dr.

Robertson

opined

that

Plaintiff

could

stand/walk for six hours, sit for an unlimited period of time,

11

occasionally lift twenty-five to fifty pounds, occasionally reach,
and frequently stoop and crouch.

(Id. at 505).

As the ALJ noted, Plaintiff had a gap in medical treatment
from July 2013 through July 2014.
Plaintiff

was

seen

for

a

drug

(Id. at 102).
test

related

In July 2014,
to

a

workers’

compensation claim and reported that he was not on any medications.
(Id. at 102, 595).

A physical examination at that time revealed a

positive straight leg raise and tenderness but no acute distress
and normal neurological and sensory examination findings.
Plaintiff was given injections for pain.

(Id.).

(Id.).

On follow up,

the provider noted no weakness, completely normal neurological and
musculoskeletal examination findings, and normal gait and stance.
(Id. at 102-03, 598-99).
In September 2014, Dr. Barry Lurate, M.D., an orthopedic
surgeon, limited Plaintiff to sedentary or light work.

However, in

February 2015, Dr. Lurate released Plaintiff back to work at the
medium exertional level, indicating improvement in his condition.
(Id. at 103, 534-35).

In April and May of 2015, Plaintiff’s pain

management provider noted Plaintiff’s reports of pain but found
normal sensation and 5/5 motor strength in all extremities.

(Id.

at 103, 577, 583).
In addition, despite Plaintiff’s alleged onset date of January
27, 2012, Plaintiff reported to his treatment providers in 2013
that he was still working performing physical labor in construction

12

and painting work and that his medications were working.
at 99, 453-55).

(Doc. 11

Plaintiff also testified at his administrative

hearing on July 24, 2015, that he reinjured his back at work in
July 2014 when he picked up a 150-pound whiskey barrel, for which
he received workers compensation benefits.

(Id. at 99, 121-22,

539).
Viewing
satisfied

the

that

record
the

in

ALJ’s

its

entirety,

implied

the

finding

undersigned

that

is

Plaintiff’s

impairments do not meet or equal Listing 1.04A is supported by the
substantial evidence detailed above.

Although Plaintiff argues

that the record contains evidence of positive straight leg raise
tests and a disc protrusion at L4-5 and L5-S1, Plaintiff does not
point to evidence establishing definitive nerve root compression
characterized by conditions such as sensory or reflex loss and motor
loss.

(Doc. 12 at 4).
The law is clear that it is not sufficient to establish some

of the criteria of the Listing.
the criteria.

Plaintiff must establish all of

See Sullivan, 493 U.S. at 530 (“For a claimant to

show that his impairment matches a listing, it must meet all of the
specified medical criteria.

An impairment that manifests only some

of those criteria, no matter how severely, does not qualify.”).
This Plaintiff has failed to do. Accordingly, his claim must fail.
VII.

Conclusion
For

the

reasons

set

forth

13

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

disability,

Security

denying

disability

Plaintiff’s

insurance

claim

benefits,

for

a

period

of

and

supplemental

security income be AFFIRMED.
DONE this 24th day of May, 2018.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

14