Cotten v. Commissioner of Social Security
Filing
19
OPINION AND ORDER affirming the decision of the Commissioner. See the Opinion and Order for details. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Mac R. McCoy on 8/8/2019. (ATC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JENNIFER LEE COTTEN,
Plaintiff,
v.
Case No: 2:18-CV-442-FtM-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
This cause is before the Court on Plaintiff Jennifer Lee Cotten’s Complaint (Doc. 1) filed
on June 25, 2018. Plaintiff seeks judicial review of the final decision of the Commissioner of the
Social Security Administration (“SSA”) denying her claims for disability insurance benefits and
a period of disability. The Commissioner filed the Transcript of the proceedings (hereinafter
referred to as “Tr.” followed by the appropriate page number), and the parties filed legal
memoranda in support of their positions. For the reasons set out herein, the decision of the
Commissioner is AFFIRMED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. §
405(g).
I.
Social Security Act Eligibility, the ALJ’s Decision, and Standard of Review
A.
Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
The impairment must be severe, making the claimant unable to do her previous work, or any
other substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3)(B); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the
burden of persuasion through step four, while the burden shifts to the Commissioner at step five.
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
B.
Procedural History
On March 18, 2016, Plaintiff filed an application for a period of disability and disability
insurance benefits, alleging an onset date of August 14, 2015. (Tr. at 83, 172-78). Plaintiff’s
claims were denied initially on May 25, 2016 and again following reconsideration on July 12,
2016. (Id. at 83-84). A hearing was held before Administrative Law Judge (“ALJ”) William G.
Reamon on May 18, 2017. (Id. at 28-72). The ALJ issued an unfavorable decision on August
30, 2017. (Id. at 15-23). The ALJ found Plaintiff not to be under a disability from August 14,
2015, through the date of the decision. (Id. at 22).
On May 19, 2018, the Appeals Council denied Plaintiff’s request for review. (Id. at 1-3).
Plaintiff filed a Complaint in this Court on June 25, 2018. (Doc. 1). The Commissioner filed an
Answer on September 13, 2018. (Doc. 13). The parties filed a Joint Memorandum on February
4, 2019. (Doc. 18). The parties consented to proceed before a United States Magistrate Judge
for all proceedings. (Doc. 14). This case is ripe for review.
C.
Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that she is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir.
2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must determine
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Unpublished opinions may be cited as persuasive on a particular point. The Court does not rely
on unpublished opinions as precedent. Citation to unpublished opinions on or after January 1,
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whether the claimant: (1) is performing substantial gainful activity; (2) has a severe impairment;
(3) has a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) has the residual functional capacity (“RFC”) to perform her
past relevant work; and (5) can perform other work of the sort found in the national economy.
Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th Cir. 2004). The claimant has the burden of
proof through step four and then the burden shifts to the Commissioner at step five. Hines-Sharp
v. Comm’r of Soc. Sec., 511 F. App’x 913, 915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff met the insured status requirements through December 31,
2019. (Tr. at 17). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since August 14, 2015, the alleged onset date. (Id.). At
step two, the ALJ found that Plaintiff suffered from the following severe impairments: “cervical
degenerative disc disease, spondylosis, and stenosis (status post anterior cervical diskectomy
with fusion) and lumbar spine degenerative joint disease, stenosis, and L5-S1 disc protrusion (20
CFR 404.1520(c)).” (Id. at 18). At step three, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. (Id. (citing 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526)).
At step four, the ALJ determined the following as to Plaintiff’s residual functional
capacity (“RFC”):
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) except
she can frequently climb ramps/stairs; no climbing
ladders/ropes/scaffolds; can frequently balance and crouch; can
2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.
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occasionally stoop, kneel, and crawl; can tolerate no overhead
reaching with the left upper extremity; must avoid concentrated
exposure to extreme cold and vibration; and can have no exposure
to dangerous moving machinery or unprotected heights.
(Id.).
The ALJ also determined that Plaintiff is capable of performing her past relevant work as
a market manager and reservations agent, finding that this work does not require the performance
of work-related activities precluded by Plaintiff’s RFC. (Id. at 22). Specifically, the ALJ found
that based on the vocational expert’s testimony, the job of market manager (DOT #186.167-042)
“is a skilled job that requires sedentary exertion as generally performed (indicated in the
Dictionary of Occupational Titles) but which requires medium exertion as performed by the
claimant.” (Id.). Thus, the ALJ found Plaintiff capable of performing the job of market manager
as generally performed. (Id.).
Additionally, the ALJ found that based on the vocational expert’s testimony, “the job of
reservations agent is a semiskilled job that requires light exertion as generally performed but
requires sedentary exertion as performed by the claimant.” (Id.). Thus, the ALJ found that
Plaintiff could perform this job as performed by Plaintiff. (Id.).
The ALJ further stated that “[p]ursuant to SSR 00-4p . . . the vocational expert’s
testimony is consistent with the information contained in the Dictionary of Occupational Titles
other than testimony as to being off tasks, sit/stand options, and use of the non-dominant vs
dominant hand,” which the ALJ “found reliable based on the vocational expert’s extensive
experience and knowledge of the regional and national job markets.” (Id.).
The ALJ concluded that Plaintiff was not under a disability from August 14, 2015,
through the date of the decision. (Id.).
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D.
Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla; i.e., the evidence
must do more than merely create a suspicion of the existence of a fact and must include such
relevant evidence as a reasonable person would accept as adequate to support the conclusion.
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Richardson, 402 U.S. at 401;
Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).
Where the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the reviewer would have reached a contrary result as the finder of fact,
and even if the reviewer finds that “the evidence preponderates against” the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932
F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560;
accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (holding the court must scrutinize
the entire record to determine reasonableness of factual findings).
II.
Analysis
On appeal, Plaintiff raises one issue, stated as follows:
Whether the ALJ erred by failing to account in the RFC finding for
all of the limitations stemming from Plaintiff’s cervical degenerative
disc disease, spondylosis, and stenosis (status post ACDF), which
he found to be “severe.”
(Doc. 18 at 10).
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Plaintiff argues that the ALJ’s RFC finding is internally inconsistent because despite
finding at step two that Plaintiff’s cervical degenerative disc disease, spondylosis, and stenosis
(status post ACDF) are severe impairments, the ALJ failed to include all related limitations in his
RFC finding, i.e., limitations to account for Plaintiff’s limited cervical range of motion and pain
with use of the upper extremities. (Id. at 13). Relatedly, Plaintiff argues that the vocational
expert’s testimony was based on an inaccurate RFC and, thus, does not constitute substantial
evidence to support the ALJ’s decision to deny benefits. (Id. at 14).
The Commissioner responds that the record provides substantial evidence to support the
ALJ’s finding. (Id. at 16). The Commissioner further argues that Plaintiff failed to prove that
her impairments imposed additional limitations on her ability to work, specifically on her ability
to perform past relevant work as a market manager or reservations agent and argues that the fact
that she had severe impairments does not mean the impairments caused added work-related
limitations. (Id. at 16-17).
Upon consideration, the Court finds the RFC finding is supported by substantial
evidence. First, an ALJ does not err solely by declining to include limitations in the RFC even
when he finds severe limitations at step two of the sequential evaluation. Davis v. Comm’r of
Soc. Sec., No. 6:12-CV-1694-ORL-36, 2013 WL 6182235, at *6 (M.D. Fla. Nov. 25, 2013)
(citing Lacroix v. Banhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006)) (rejecting Plaintiff’s
contention that the ALJ’s decision was inconsistent because ALJ found an impairment to be
severe but did not include related limitations in the RFC finding). The severity standard at step
two is a de minimus hurdle meant to weed out non-meritorious claims and, thus, while an
impairment may meet the definition of severity, this does not necessarily mean that such an
impairment will affect the RFC determination. Id.; see also McDaniel v. Bowen, 800 F.2d 1026,
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1031 (11th Cir. 1986) (“Step two is a threshold inquiry. It allows only claims based on the most
trivial impairments to be rejected.”). Thus, despite Plaintiff’s assertions to the contrary, a failure
to identify impairment-related limitations in a RFC is not necessarily inconsistent with a finding
that an impairment is severe.
Next, the ALJ found that Plaintiff’s testimony and allegations were not credible and that
her claims were contrary to the objective medical evidence. (Tr. at 20). The ALJ concluded that
while Plaintiff’s “medically determinable impairments could reasonably be expected to cause the
alleged symptoms,” her allegations “concerning the intensity, persistence and limiting effects of”
her pain were “not borne out by the medical evidence of record as of her alleged onset date.”
(Id. at 19).
To establish disability based on testimony of pain and other subjective symptoms, a
plaintiff must satisfy the following three-part test: “(1) evidence of an underlying medical
condition; and (2) either (a) objective medical evidence confirming the severity of the alleged
pain; or (b) that the objectively determined medical condition can reasonably be expected to give
rise to the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt
v. Sullivan, 921 F.3d 1221, 1223 (11th Cir. 1991)); see also Chatham v. Comm’r of Soc. Sec.,
764 F. App’x 864, 868 (11th Cir. 2019). After an ALJ has considered a plaintiff’s complaints of
pain, the ALJ may reject them, and that determination will be reviewed to determine if it is based
on substantial evidence. Moreno v. Astrue, 366 F. App’x 23, 28 (11th Cir. 2010) (citing
Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992)). If an ALJ discredits the subjective
testimony of a plaintiff, then he must “articulate explicit and adequate reasons for doing so.
Failure to articulate the reasons for discrediting subjective testimony requires, as a matter of law,
that the testimony be accepted as true.” Wilson, 284 F.3d at 1225 (citation omitted).
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Nevertheless, the Eleventh Circuit has stated that “[t]he question is not . . . whether [the] ALJ
could have reasonably credited [the claimant’s] testimony, but whether the ALJ was clearly
wrong to discredit it.” Werner v. Comm’r of Soc. Sec., 421 F. App’x 935, 939 (11th Cir. 2011).
Here, the ALJ discredited Plaintiff’s allegations of severe, disabling cervical spine and
lumbar pain because they were not substantiated or consistent with the objective medical
evidence in the record. (Tr. at 19-21). The ALJ considered the examination notes of
consultative examiner Dr. Michael Rosenberg, who noted on May 19, 2016 that while Plaintiff
had bulging discs and degenerative disc disease and experienced cervical spine pain and
decreased range of motion, she appeared to be in no acute distress; her gait was without a limp or
balance disturbance; she had full strength in her extremities, other than a mild decrease in
strength in her left upper extremity; her stance was normal, and she used no assistive devices;
she did not need help changing or getting on and off the exam table, and she was able to rise
from a chair without difficulty. (Id. at 347-49).
The ALJ also considered treatment notes of Dr. Jaime Alvarez, Plaintiff’s surgeon. (Id.
at 20). Treatment notes from several weeks before surgery reflect that Plaintiff’s gait was
normal, that she was able to get on an examination table without help, that she ambulated
without difficulty, that sensation in both her upper and lower extremities was intact, that she had
full range of motion in both upper extremities with a mild decrease in strength in her left upper
extremity and full strength in her right upper extremity. (Id. at 429-30). She underwent ACDF
surgery on October 25, 2016. (Id. at 425, 574). Dr. Alvarez noted at Plaintiff’s first postoperative examination that Plaintiff appeared in a wheelchair although she did not require one
and that she was able to complete certain daily activities, i.e., personal care, drive, carry, and lift.
(Id. at 427). He determined that Plaintiff’s expressed pain was “out of proportion to the expected
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pain based on historical experience.” (Id.). Dr Alvarez advised Plaintiff to move around and
walk for exercise. (Id.). Further post-operative treatment notes reflect that she experienced
some improvement in her left upper extremity symptoms through post-operative therapy. (Id. at
425, 432, 434).
Plaintiff points to a December 23, 2016 visit with Dr. Alvarez, during which he
confirmed the presence of cervical pain and reduced range of motion as evidence that the ALJ
erred in failing to include additional limitations in the RFC. (Doc. 18 at 14). However, during
that same visit, Dr. Alvarez noted that despite experiencing some pain, the Plaintiff was able to
perform personal care, drive, carry, and lift. (Tr. at 558). Moreover, at her final visit on
February 15, 2017, Dr. Alvarez noted the Plaintiff was “stable” and “doing well.” (Id. at 423).
Next, the ALJ considered Dr. Michael Martinez’s notes. (Id. at 20). Dr. Martinez, who
treated Plaintiff for medication management, noted that post-operation, Plaintiff’s pain and
symptoms were treated and adequately managed with medications and that she experienced no
side effects. (Id. at 368-69, 371-72, 374-75). As noted by the ALJ, both pre- and post-operative
treatment notes show that her back pain was a 2 out of 10 on September 15, 2016, and a 3 out of
10 on March 2, 2017. (Id. at 369, 702).
Upon review of the record, the Court finds that substantial evidence supports the decision
to discredit Plaintiff’s subjective testimony of disabling pain due to its inconsistency with
objective medical evidence, as outlined above. Furthermore, Plaintiff has not shown that her
cervical degenerative disc disease, spondylosis, and stenosis impose additional limitations on her
ability to work, specifically on her ability to perform past relevant work as a market manager or
reservations agent. The Court therefore finds that the ALJ’s RFC finding is supported by
substantial evidence.
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III.
Conclusion
Upon consideration of the submissions of the parties and the administrative record, the
Court finds that substantial evidence supports the ALJ’s decision and that the decision was
decided upon proper legal standards. Accordingly, it is hereby ORDERED that the decision of
the Commissioner is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk
of Court is directed to enter judgment accordingly, terminate any pending motions and
deadlines, and close the case.
DONE AND ORDERED in Fort Myers, Florida on August 8, 2019.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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