Rodgers v. Colvin
MEMORANDUM OPINION AND ORDER that the decision of the Commissioner of Social Security denying plaintiff benefits is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 2/22/2016. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JULIA L. RODGERS,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
Civil Action No. 2:15-00011-N
MEMORANDUM OPINION AND ORDER
Plaintiff Julia L. Rodgers brings this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of
Social Security denying her applications for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). The parties have consented to the exercise of
jurisdiction by, and this case has been ordered referred to, the undersigned United
States Magistrate Judge for all proceedings in this Court pursuant to 28 U.S.C. §
636(c). See Docs. 16, 17. Oral argument was held on October 27, 2015. Doc. 18.
Present were Byron A. Lassiter, Esq., representing Plaintiff, and Patricia Beyer,
Esq., representing Defendant Carolyn Colvin.
Upon consideration of the administrative record (“R.”) (Doc. 11), Plaintiff’s
Brief (Doc. 12), and the Commissioner’s Brief (Doc. 13), the Court has determined
Plaintiff filed applications for DIB and SSI on May 25, 2011 (see R. 124-34),
alleging a disability onset date of October 1, 2010.2 See R. 124. Her application was
initially denied. See R. 65-69. Hearings were conducted before Administrative Law
Judge Michael D. Anderson (“the ALJ”) on January 10, 2013. See R. 43-61. On April
30, 2013, the ALJ issued the decision, now before this Court, finding Plaintiff not
disabled. R. 17-42. The Appeals Council issued a decision declining to review the
ALJ’s determination on November 17, 2014 (see R. 1-7), rendering the
Commissioner’s decision final for purposes of judicial review (see 20 C.F.R. §
404.981). Claimant timely filed a complaint in this Court on January 13, 2015. See
Plaintiff is a resident of Pinehill, Alabama, born March 3, 1983. R. 124. She
was 29 at the time of the hearing before the ALJ. R. 43, 124. She completed eleventh
grade, but does not have a GED. R. 47-48. Her past relevant work experience
includes positions as a fast food worker, a fire-watcher at a construction site, and a
commercial cleaner. R. 55-57; 145. She has not worked since before the alleged onset
date of October 1, 2010. R. 145. Plaintiff suffers from a number of medical issues,
Any appeal taken from this memorandum opinion and order and simultaneously entered separate
judgment may be made directly to the Eleventh Circuit Court of Appeals. See Doc. 23.
Plaintiff alleges that she has been disabled since October 1, 2010, as a result of back injuries
sustained in an automobile accident. R. 144.
including degenerative disc disease of the cervical spine (Plaintiff has had cervical
fusion of vertebrae C4 through C6); cervical radiculopathy; and mild obesity. R. 22.
In December 2010, Plaintiff underwent cervical spine surgery performed by
Dr. Timothy Holt to address complaints of neck and back pain. R. 245-46, 488. In
September 2011, Dr. Holt described Plaintiff as “pretty much asymptomatic,” though
Plaintiff complained of “some pain” in December 2011. R. at 555, 556. Plaintiff has
continued to complain of neck pain even post-surgery. R. 555, 578. In August 2012,
she was evaluated for pain and numbness in her neck and arms by Dr. Huey Kidd,
who recommended physical work limitations.3 R. 578.
Claims on Appeal
On appeal to this Court, Plaintiff asserts that the Commissioner’s decision to
deny benefits is in error (i.e., not supported by substantial evidence) on the following
1. The ALJ erred in finding that Plaintiff could return to her past
relevant work as a Commercial Cleaner because the work performed
by Plaintiff as a cleaner did not meet the Commissioner’s criteria for
“past relevant work”;
2. The ALJ erred in posing a misleading, incomplete hypothetical
3. The ALJ erred in rejecting the opinion of the treating physician, Dr.
Kidd, regarding Plaintiff’s pain and medication side effects.
Dr. Kidd opined that Plaintiff could perform activities that fell between the requirements of “light
work” and “medium work.” R. 580-81.
Doc. 12 at 2.
Standard of Review
In all Social Security cases, a plaintiff (sometimes referred to as a claimant)
bears the burden of proving that he or she is unable to perform his or her previous
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether
that burden has been met, and thus a claimant has proven that he or she is disabled,
the examiner (most often an ALJ) must consider the following four factors: (1)
objective medical facts and clinical findings; (2) diagnoses of examining physicians;
(3) evidence of pain; and (4) the plaintiff’s age, education, and work history (see id);
and, in turn,
uses a five-step sequential evaluation to determine whether the
claimant is disabled, which considers: (1) whether the claimant is
engaged in substantial gainful activity; (2) if not, whether the claimant
has a severe impairment; (3) if so, whether the severe impairment
meets or equals an impairment in the Listing of Impairments in the
regulations; (4) if not, whether the claimant has the [residual functional
capacity, or] RFC[,] to perform her past relevant work; and (5) if not,
whether, in light of the claimant’s RFC, age, education and work
experience, there are other jobs the claimant can perform.
Watkins v. Commissioner of Soc. Sec., 457 Fed. Appx. 868, 870 (11th Cir. 2012) (per
curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v.
Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)).
If a plaintiff proves that he or she cannot do his or her past relevant work, it
then becomes the Commissioner’s burden to prove that the plaintiff is
capable—given his or her age, education, and work history—of engaging in another
kind of substantial gainful employment that exists in the national economy. Id.;
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834,
836 (11th Cir. 1985). Finally, but importantly, although “the [plaintiff] bears the
burden of demonstrating the inability to return to [his or] her past relevant work,
the Commissioner of Social Security has an obligation to develop a full and fair
record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).
The task for this Court is to determine whether the Commissioner’s decision
to deny a plaintiff benefits is supported by substantial evidence. Substantial
evidence is defined as more than a scintilla but less than a preponderance, and
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “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). Courts are precluded, however,
from “deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370
Fed. App’x 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart,
395 F.3d 1206, 1210 (11th Cir. 2005)). “Even if the evidence preponderates against
the Commissioner’s findings, [a court] must affirm if the decision reached is
supported by substantial evidence.” Id. (citing Crawford v. Commissioner of Soc.
Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)) (emphasis added).
Plaintiff’s Commercial Cleaner position met the requirements for
“past relevant work”.
Plaintiff contends that her position as a commercial cleaner should not have
been considered past relevant work because it did not constitute “substantial gainful
activity.” Doc. 12 at 9. The SSA defines “past relevant work” as “work that you have
done within the past 15 years that was substantial gainful activity, and that lasted
long enough for you to learn to do it.” 20 C.F.R. § 404.1560(b)(1); see also 20 C.F.R. §
The SSA defines “substantial” work activity and “gainful” work activity
separately. “Substantial work activity” is “work activity that involves doing
significant physical or mental activities.” 20 C.F.R. § 404.1572(a). Such work “may
be substantial even if it is done on a part-time basis. Id. Plaintiff’s work included
vacuuming, cleaning toilets, and dusting (R. 181), which is significant physical
activity qualifying as substantial work activity. See 20 C.F.R. § 404.1572(a). Plaintiff
only performed this work for eight hours per week (R. 181), but work is not
insubstantial merely because it is part-time. See 20 C.F.R. § 404.1572(a).
“Gainful work activity” is “work activity that you do for pay or profit. Work
activity is gainful if it is the kind of work usually done for pay or profit, whether or
not a profit is realized.” 20 C.F.R. § 404.1572(b). Plaintiff testified that she earned
$45 to $75 (per week) for 8 hours of weekly work. Tr. 155, 181. While this is a low
total, it is monetary income earned for part-time work, and Plaintiff has not shown
why it should not be considered gainful. See 20 C.F.R. § 404.1572(b).
The SSA also has a formula for determining the income amount for
substantial gainful activity in a certain year. 65 Fed. Reg. 82,905. In 2008, the last
year in which Plaintiff’s earnings were reported for the commercial cleaner position,
Plaintiff earned $12,429.40, averaging $1035.78 per month. R. 141. In 2008, the
SSA’s monthly substantial gainful activity threshold was $940 in earnings for
non-blind individuals. See 65 Fed. Reg. 82,905. Thus, Plaintiff’s earnings in the
commercial cleaner position constitute substantial gainful activity. See id. Further,
the VE testified that Plaintiff’s past cleaning working was substantial gainful
activity based on her earnings records and questions asked of Plaintiff. R. 56-57; R.
135-142. Thus, the commercial cleaner position was properly considered by the ALJ
as past relevant work.
The ALJ posed an acceptable hypothetical question.
Plaintiff next contends that the ALJ posed an inappropriate hypothetical
question to the Vocational Expert (VE) that did not include information about
Plaintiff’s “mild to moderate pain, which could occasionally interfere with
concentration, persistence, and pace.” R. 25; Doc. 12 at 12-13. “In order for a VE’s
testimony to constitute substantial evidence, the ALJ must pose a hypothetical
question which comprises all of the claimant’s impairments.” Jones, 190 F.3d at
1229; see also Pendler v. Heckler, 767 F.2d 1561, 1562 (11th Cir. 1985) (stating that
in order for a hypothetical question to constitute substantial evidence, it must
comprehensively describe the claimant’s impairments and limitations).
“Concentration, persistence, or pace” is on of the “four broad functional areas”
considered in a preliminary assessment before determining a claimant’s actual
mental functional limitations. 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4). This
preliminary assessment is a “special technique” for evaluating mental impairments
which is not itself a determination of a claimant’s specific work-related, mental
functional limitations. 20 C.F.R. §§ 404.1520a, 416.920a (stating that a claimant’s
actual mental RFC is assessed later, if necessary. A hypothetical question to a VE
must still account for limitations in concentration, persistence, and pace identified
during the special technique. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1180-81 (11th Cir. 2011). However, where “medical evidence demonstrates that a
claimant can engage in simple routine tasks or unskilled work despite limitations in
concentration, persistence, and pace, courts have concluded that limiting the
hypothetical to include only unskilled work sufficiently accounts for such limitations.
Id. Here, the ALJ factored [Plaintiff’s] mild to moderate pain into the assessment [of
functional limitations],” and also found that Plaintiff’s pain “could occasionally
interfere with concentration, persistence, and pace.” R. 25, 35. The ALJ still found
Plaintiff was able to do simple, unskilled, repetitive work. R. 57.
The ALJ’s hypothetical question was limited to the commercial cleaner
position, which was unskilled work, so the question adequately accounted for
Plaintiff’s concentration, persistence, and pace limitations. See Winschel, 631 F.3d at
The ALJ properly considered the treating physician’s opinion
regarding Plaintiff’s pain and medication side effects.
Finally, the Plaintiff argues that the ALJ improperly rejected the opinion of
the treating physician, Huey Kidd, D.O., regarding Plaintiff’s pain and medication
side effects. Doc. 12 at 14. Dr. Kidd issued two separate opinions regarding
Plaintiff’s functional limitations, one in August 2012 (R. 578-85) and one in
December 2012. R. 602-05. The opinion of a treating physician, such as Dr. Kidd, is
generally entitled to substantial or considerable weight, absent “good cause.” See,
e.g., Winschel, 631 F.3d at 1179; see also 20 C.F.R. § 404.1527. “Good cause exists
‘when the: (1) treating physician’s opinion was not bolstered by the evidence; (2)
evidence supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.’ ” Winschel, 631
F.3d at 1179 citing Phillips, 357 F.3d at 1241. “With good cause, an ALJ may
disregard a treating physician’s opinion, but he ‘must clearly articulate [the]
reasons’ for doing so. Id.
The ALJ concluded that Dr. Kidd’s December 2012 evaluation contradicted
his own August 2012 evaluation, despite the fact that Dr. Kidd did not indicate any
re-examination of Plaintiff in the intervening period. R. 31-32. The ALJ chose to
accept the August 2012 evaluation, but not the contradicting December 2012
evaluation. R. 32. The contradiction represented “good cause” to disregard the
second evaluation. See Winschel, 631 F.3d at 1179. The ALJ’s statement of the
reasons for disregarding the second evaluation comport with the standard set by
Winschel. See id. Thus, the ALJ properly considered Dr. Kidd’s evaluation of
Plaintiff’s pain and medication side effects.
The ALJ relied on substantial evidence in making the RFC
assessment and in finding that the Plaintiff could perform past work.
Finally, the ALJ’s RFC determination, and his subsequent determination that
the Plaintiff can perform medium work at a reduced level, included past relevant
work, are supported by substantial evidence as required by Jones (190 F.3d at 1228)
and Crawford (363 F.3d at 1158-59). In making the decision, the ALJ relied on the
opinions, assessments, and treatment notes of Timothy Holt, M.D.; Huey Kidd, D.O.;
Eugune T. Saiter, M.D.; and Calvin R. Johns, M.D. R. 25-36. The ALJ also relied on
the testimony of a vocational expert, Michael C. McClanahan, Ph.D. R. 36-37. As
required by the Eleventh Circuit, the evidence relied upon is “more than a scintilla”
and is “such relevant evidence as a reasonable person would accept as adequate to
support [the ALJ’s] conclusion.” See Martin v. Sullivan, 894 F. 2d 1520, 1529 (11th
Cir. 1990) (internal citations omitted). In the last analysis, the record evidence does
not support Plaintiff’s assignments of error. Rather, the record as a whole reflects
that the ALJ’s decision was supported by substantial evidence.
Accordingly, it is ORDERED that the decision of the Commissioner of Social
Security denying Plaintiff benefits is AFFIRMED.
DONE and ORDERED this the 22nd day of February 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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