Seymour v. Berryhill

Filing 16

Order re: 1 Complaint filed by George E. Seymour, Jr. stating that the decision of the Commissioner of Social Security denying Plaintiff's claim for a period of disability and disability insurance benefits be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/21/19. (mpp) Copies to counsel

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GEORGE E. SEYMOUR, JR.,

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Plaintiff,
vs.
NANCY BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

CIVIL ACTION NO. 17-00537-B

ORDER
Plaintiff George E. Seymour, Jr. (hereinafter “Plaintiff”),
seeks judicial review of a final decision of the Commissioner of
Social Security denying his claim for a period of disability and
disability insurance benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401, et seq.

On October 12, 2018, the parties

consented to have the undersigned conduct any and all proceedings
in this case.

(Doc. 12).

Thus, the action was referred to the

undersigned to conduct 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.

Procedural History1

I.

Plaintiff filed his application for benefits on June 16, 2015,
alleging

disability

beginning

September

10,

diabetes, neuropathy, and spinal stenosis.
207).

2009,

based

on

(Doc. 8 at 182, 194,

Plaintiff last met insured status on December 31, 2013. (Id.

at 23). Plaintiff’s application was denied and upon timely request,
he was granted an administrative hearing before Administrative Law
Judge Robert Waller (hereinafter “ALJ”) on November 21, 2016.
at 73).
provided

(Id.

Plaintiff attended the hearing with his attorney and
testimony

related

to

his

claims.

(Id.

at

77).

A

vocational expert (“VE”) also appeared at the hearing and provided
testimony.

(Id. at 108).

On February 8, 2017, the ALJ issued an

unfavorable decision finding that Plaintiff is not disabled.
at 21).

The Appeals Council denied Plaintiff’s request for review

on October 26, 2017.
dated

(Id.

February

8,

(Id. at 6).
2017,

became

Therefore, the ALJ’s decision
the

final

decision

of

the

Commissioner.
Having exhausted his administrative remedies, Plaintiff timely
filed the present civil action.
conducted on November 16, 2018.

(Doc. 1).
(Doc. 15).

Oral argument was

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).

1

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

2

II.

Issue on Appeal
Whether substantial evidence supports the
Residual Functional Capacity (“RFC”) for a
range of sedentary work with the stated
restrictions?

III. Factual Background
Plaintiff was born on October 10, 1971, and was forty-five
years of age at the time of his administrative hearing on November
21, 2016.

(Doc. 8 at 77, 194).

Plaintiff graduated from Auburn

University with a degree in Health and Human Performance.

(Id. at

78-79).
Plaintiff
teacher.

last

worked

(Id. at 79).

from

2006

to

2009

as

a

substitute

Prior to that, from 2002 to 2006, he was

employed as a pizza restaurant worker and from 1995 to 2002 as an
assistant manager at a pizza restaurant.

(Id. at 80-82).

Plaintiff testified that he can no longer work because of
problems with his heart, back, diabetes, and high blood pressure.
(Id. at 83-85).

Plaintiff testified that he had surgery on his

back in 2009, and this significantly alleviated his back pain and
eliminated the need for a walker.

(Id. at 85-88).

Plaintiff also

had heart problems in 2009, which steadily improved with medication
and exercise.

(Id. at 88-89).

From 2009 to 2013, Plaintiff’s

diabetes was managed with medication; however, in 2014, some of his
toes had to be amputated because of non-healing diabetic ulcers.
(Id. at 91-92).

Plaintiff testified that it was hard for him to
3

wear shoes, and he got fatigued easily.

(Id. at 100-01).

However,

Plaintiff also testified that, during the period in question, he
exercised and walked about a mile, four or five days a week.

(Id.

at 89, 103-04).
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)

whether the decision of the Secretary is supported by substantial
evidence and 2) whether the correct legal standards were applied.2
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

2

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

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.
416.912.

Security

disability

20 C.F.R. §§ 404.1512,

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

5

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.

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. Substantial
evidence
supports
the
Residual Functional Capacity (“RFC”) for
a range of sedentary work with the stated
restrictions.
In his brief, Plaintiff argues that the ALJ’s finding that he
6

can

perform

substantial

a

range

evidence,

of

sedentary

“as

it

work

is

not

misrepresents

the

supported

by

Plaintiff’s

testimony regarding his activities of daily living and does not
account for records that support Plaintiff’s testimony of chronic
fatigue and flares.” (Doc. 9 at 2).

Specifically, Plaintiff states

that “[w]hile [he] did testify that he could perform some of
activities

listed

by

the

ALJ,

a

full

reading

of

the

written

transcript shows that Plaintiff acknowledged that he didn’t always
tell his doctors about his flares and instead focused on how he was
feeling on his positive days.”

(Id. at 3).

The Government counters

that the ALJ expressly considered Plaintiff’s impairments, as well
as Plaintiff’s testimony and reports to his treating physicians
about his wide range of activities, and that the RFC is fully
supported by the substantial evidence.

(Doc. 10 at 3).

Having

reviewed the record at length, the Court finds that Plaintiff’s
claim is without merit.
Residual functional capacity is a measure of what Plaintiff
can do despite his or her credible limitations.
404.1545.

See 20 C.F.R. §

Determinations of a claimant’s RFC 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.

See

Beech v. Apfel, 100 F. Supp. 2d 1323, 1331 (S.D. Ala. 2000) (citing
20 C.F.R. § 404.1546 and Lewis v. Callahan, 125 F.3d 1436, 1440

7

(11th Cir. 1997)); Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571,
*10, 2012 WL 997222, *4 (M.D. Ala. March 23, 2012).

Once the ALJ

has determined the claimant’s RFC, the claimant bears the burden of
demonstrating

that

the

substantial evidence.
(11th Cir. 1985).

ALJ’s

decision

is

not

supported

by

See Flynn v. Heckler, 768 F.2d 1273, 1274

Plaintiff has failed to meet his burden in this

case.
In the instant case, the ALJ found that Plaintiff has the
severe impairments of congestive heart failure, diabetes mellitus,
neuropathy, obesity, degenerative changes in the back, status post
laminectomy, and hypertension. (Doc. 8 at 23).
determined

that

sedentary

work

lift/carry

10

Plaintiff
with

the

pounds

has

the

following

occasionally

RFC

to

The ALJ also

perform

restrictions:
and

less

a

range

Plaintiff

than

10

of
can

pounds

frequently; sit for 6 hours; stand for 2 hours; walk for 2 hours;
push/pull as much as can lift/carry; never climb ladders, ropes, or
scaffolds; climb ramps and stairs, balance, stoop, kneel, crouch
and crawl occasionally; never be exposed to unprotected heights or
moving mechanical parts; and have occasional exposure to humidity
and wetness, dust, odors, fumes, pulmonary irritants, extreme cold
and extreme heat.

(Id. at 24).

Based upon the testimony of the

vocational expert, the ALJ concluded that Plaintiff is not able to
perform his past relevant work, but he can perform other work such
as front desk receptionist, data entry clerk, and telemarketer, all

8

sedentary and semi-skilled.

(Id. at 34-35).

that Plaintiff is not disabled.

Thus, the ALJ found

Having reviewed the evidence at

length, the Court is satisfied that the ALJ’s RFC is supported by
substantial evidence.
As noted, Plaintiff’s last date insured is December 31, 2013.
(Doc. 8 at 23).

As the ALJ found, Plaintiff’s treatment records

show that he was treated from 2009 to 2016 for various ailments
including

back

pain,

diabetes,

neuropathy,

hypertension, and congestive heart failure.
17, 501-08, 840-931).

spinal

stenosis,

(Id. at 271-72, 407-

At his hearing, Plaintiff testified that,

following a successful laminectomy procedure on his back in 2009,
he no longer needed a walker, and his back pain was reduced to a
two on a ten-point pain scale, although he occasionally experienced
flare ups.3
testified

(Id. at 85-87, 95-96, 271-72, 417).
that

his

heart

condition

improved

Plaintiff further
with

medication,

although he still experienced occasional fatigue and shortness of
breath.

(Id. at 88, 409, 501, 521, 834).

Plaintiff also testified

that his diabetes was manageable, although he experienced ulcers on
his feet from 2009 to 2014.

(Id. at 91-93, 106).

According to

Plaintiff, he experienced worsening diabetic symptoms in March
2014, eventually resulting in the amputation of several of his toes.

3

An MRI taken on November 24, 2009, after Plaintiff’s back surgery,
showed only mild degenerative changes of the thoracic spine. (Doc.
8 at 414).

9

However, Plaintiff acknowledges that his toe amputations occurred
after the date he was last insured (December 31, 2013). (Doc. 9 at
4 n.1; Doc. 8 at 938, 941, 1235, 1312, 1329, 1337-43).
As the ALJ found, with the exception of Plaintiff’s back
surgery

in

2009,

his

treatment

records

reflect

conservative

treatment of his medical conditions with medication, diet, and
exercise, resulting in adequate control of symptoms.
72,

407-10,

Plaintiff’s

417,

501-25,

medical

702-20,

records

751-68,

reflect

(Id. at 271-

840-71).

largely

normal

Indeed,
physical

examination findings, including notations that he was “doing very,
very well;” “back pain has essentially resolved;” “no back pain;”4
no chest pain; no tenderness; no headache; no shortness of breath;
no

chest

pain;

doing

remarkably

well;

no

acute

distress;

“neurologically normal;” no swelling in extremities; normal lungs;
normal

range

of

motion;

normal

strength;

normal

gait

and

coordination; no joint pain; no muscle weakness; and normal sensory
and motor function.

(Id. at 408-10, 504-25, 834, 840-71, 1288).

Specifically, with respect to Plaintiff’s heart condition, his
medical records reflect that he was hospitalized in October 2009
for heart failure and edema (id. at 354), after which he was treated
by Dr. Brian Wood, M.D., from 2009 to 2014 for cardiomyopathy,

4

Following Plaintiff’s laminectomy back surgery in September 2009,
his surgeon, Dr. Folarin Olubowale, repeatedly noted that he was
doing “remarkably well” and experiencing no back pain whatsoever.
(Doc. 8 at 408-10).

10

congestive heart failure, diabetes, fatigue, and ulcers on his feet.
Dr.

Wood’s

treatment

plan

consisted

of

medication,

diet,

and

exercise, and his notes reflect that Plaintiff was improving and
feeling better with treatment.

(Id. at 516-25, 544-77, 834-926).

In addition, Dr. Wood’s examination findings reflect normal gait,
normal range of motion, and normal strength, with no motor or
sensory deficits, no swelling in extremities, no chest pain, healed
ulcers on feet, normal cardiovascular exam, no shortness of breath,
no joint pain, and no muscle weakness.
834, 840-914, 1271).

(Id. at 501-23, 544-77,

In May 2010, Dr. Wood noted that Plaintiff

“says he pushed his lawn mower recently for 35 minutes with no
symptoms.” (Id. at 513).

In November 2010, Dr. Wood noted that

Plaintiff

to

reported

going

a

college

shortness of breath or chest pain.”

football

(Id. at 506).

noted that Plaintiff’s diabetes was improving.

game

“without

Dr. Wood also

In October 2012 and

April 2013, Dr. Wood advised Plaintiff that his lab work showed
that his liver, sugar, thyroid, anemia screens, and diabetes markers
were “fantastic,” and the good report continued in October 2013.
(Id. at 836, 845, 852).
In December 2011, Plaintiff was also treated by a cardiologist,
Dr. Michael Williams, M.D., who noted that Plaintiff was “doing
well,” that he was compliant with his medications, that he was
having no chest pain or shortness of breath, that he was exercising,
that the was “feel[ing] good,” and that his echocardiogram and

11

examination showed that he was “stable.” (Id. at 762).

Another

treating cardiologist, Dr. Patricia Wade, M.D., noted in January
2013 that Plaintiff was able to do yard work and was “not limited
at all by his breathing,” and in July 2013, Plaintiff reported that
he was exercising four or five times a week for up to a mile at a
time.

(Id. at 702, 751).

were largely normal.

Plaintiff’s physical examinations again

(Id. at 702, 717-19, 751-56, 762).

With respect to Plaintiff’s hypertension and diabetes, his
treating physicians similarly prescribed medication, as well as
diet and exercise.

(Id. at 501-25, 703, 828-44, 1271).

While

Plaintiff argues in his brief that these conditions were poorly
controlled, he testified at his hearing that his diabetes was
manageable (id. at 91-92) and did not testify to any limitations
resulting from his hypertension.

(Id.).

Further, with respect to

Plaintiff’s diabetic foot ulcers, the record shows that Plaintiff’s
treating physician, Dr. Wade, prescribed antibiotics on January 7,
2013, which resulted in healing.5

(Id. at 702).

Notably, despite each of Plaintiff’s impairments, the record
shows

that

Plaintiff

maintained

a

wide

range

of

activities,

including: driving; yard work (raking and trimming bushes); house
work (laundry and dishes); cooking; shopping; washing the car; going
5

On January 7, 2013, Dr. Wade noted, “[t]he ulcers on his feet have
healed.”
(Doc. 8 at 702).
As noted previously, Plaintiff’s
diabetic foot ulcers worsened after the date last insured, resulting
in amputation of several of Plaintiff’s toes.

12

out to eat; going to concerts, festivals, sporting events, Mardi
Gras, and Mardi Gras balls; travelling; exercising (walking up to
one mile a day, four or five times a week); taking care of his own
personal needs; and managing his own finances.

(Id. at 78, 90, 97-

99, 103-04, 228-30, 751, 1288).
Although Plaintiff argues that “[t]he ALJ failed to account .
. . for Plaintiff’s acknowledgement that he sometimes sugarcoated
reports to his doctors,” (Doc. 9 at 4), the ALJ’s decision reflects
that he expressly considered Plaintiff’s testimony, as well as the
medical records related to each of his impairments, when limiting
Plaintiff’s RFC to a reduced range of sedentary work.
32).

(Id. at 27,

While there is no question that Plaintiff had degenerative

changes of the back (for which he underwent successful laminectomy
surgery in 2009) and that he has been diagnosed with cardiomyopathy,
congestive heart failure, diabetes, neuropathy, and hypertension,
which have caused him to experience symptoms such as fatigue,
shortness

of

breath,

records,

overall,

and

reflect

foot

ulcers,

conservative

Plaintiff’s
treatment

treatment
of

these

conditions, with adequate control of symptoms and largely normal
physical examination findings. Indeed, as the ALJ found, the record
fails to show any significant physical limitations resulting from
any of these conditions during the period in question.
Based on the foregoing, the Court finds that the substantial
evidence supports the ALJ’s determination that Plaintiff has the

13

RFC

to

perform

restrictions.

a

range

of

sedentary

work,

with

the

stated

Plaintiff has failed to show that any limitations

caused by his impairments exceed the RFC and are not accommodated
by the RFC and its stated restrictions.

Accordingly, Plaintiff’s

claim must fail.6
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

a

period

of

disability and disability insurance benefits be AFFIRMED.
DONE this 21st day of March, 2019.

/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

6

Although Plaintiff has cited evidence in the record which he claims
supports a finding that he is disabled, that is, at best, a
contention that the record evidence supports a different finding.
That is not the standard on review. The issue is not whether there
is evidence in the record that would support a different finding,
but whether the ALJ’s finding is supported by substantial evidence.
See Figueroa v. Commissioner of Soc. Sec., 2017 U.S. Dist. LEXIS
181734, *15-16, 2017 WL 4992021, *6-7 (M.D. Fla. Nov. 2, 2017)
(“Although Plaintiff cites to certain test results, notes, and
physical therapy findings as support for her contention that ‘there
were objective medical findings that support the doctor’s opinions
about [her] limitations’ . . ., this is, at best, a contention that
the record could support a different finding. This is not the
standard on review. The issue is not whether a different finding
could be supported by substantial evidence, but whether this finding
is.”).

14