GRAY v. BERRYHILL

Filing 18

MEMORANDUM DECISION AND ORDER. The decision of the Commissioner is AFFIRMED, and this action is DISMISSED. Judgment is entered, pursuant to sentence four of 42 U.S.C. § 405(g), AFFIRMING the decision of the Commissioner. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on 5/1/2019. (alb)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
TERESA LYNN GRAY,
Plaintiff,
vs.

Case No.: 5:18cv61/EMT

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
______________________________/
MEMORANDUM DECISION AND ORDER
This case has been referred to the undersigned magistrate judge for disposition
pursuant to the authority of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, based on the
parties’ consent to magistrate judge jurisdiction (see ECF Nos. 9, 10). It is now before
the court pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“the Act”), for
review of a final decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying Plaintiff’s applications for disability insurance benefits
(“DIB”) under Title II of the Act, 42 U.S.C. §§ 401–34, and for supplemental security
income (“SSI”) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381–83.

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Upon review of the record before this court, it is the opinion of the undersigned
that the findings of fact and determinations of the Commissioner are supported by
substantial evidence; thus, the decision of the Commissioner should be affirmed.
I.

PROCEDURAL HISTORY
On August 1, 2014, Plaintiff filed applications for DIB and SSI, and in each

application she alleged disability beginning July 10, 2010; she subsequently amended
the onset date to May 28, 2014 (tr. 27).1 Her applications were denied initially and on
reconsideration, and thereafter she requested a hearing before an administrative law
judge (“ALJ”). A hearing was held on August 4, 2016, and on December 7, 2016, the
ALJ issued a decision in which he found Plaintiff “not disabled,” as defined under the
Act, at any time through the date of his decision (tr. 27–36). The Appeals Council
subsequently denied Plaintiff’s request for review. Thus, the decision of the ALJ
stands as the final decision of the Commissioner, subject to review in this court.
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007).

All references to “tr.” refer to the transcript of the Social Security Administration record
filed on June 19, 2018 (ECF No. 12). The page numbers refer to those found on the lower righthand corner of each page of the transcript, as opposed to those assigned by the court’s electronic
docketing system or any other page numbers that may appear.
1

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II.

FINDINGS OF THE ALJ
In denying Plaintiff’s claims, the ALJ made the following relevant findings (see

tr. 27–36):
(1) Plaintiff met the insured status requirements of the Act through
December 31, 20152;
(2) Plaintiff had not engaged in substantial gainful activity since May 28,
2014, the amended alleged onset date;
(3) Plaintiff had the following severe impairments: history of carotid artery
disease status post endarterectomy; chronic obstructive pulmonary disease (COPD);
and history of transient ischemic attack;
(4) Plaintiff did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments in 20 C.F.R.
part 404, Subpart P, Appendix 1;
(5) Plaintiff had the residual functional capacity (RFC) to perform light work
as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) such that she could
occasionally lift/carry twenty pounds and frequently lift/carry ten pounds; she could
stand/walk for six hours out of an eight-hour workday and sit for six hours out of an
eight-hour workday; and she was to avoid concentrated exposure to humidity, dust,
fumes, and other pulmonary irritants;
(6) Plaintiff was capable of performing past relevant work in housekeeping,
as this work did not require the performance of work-related activities precluded by
her RFC; and
Thus, the time frame relevant to Plaintiff’s claim for DIB is May 28, 2014 (date of alleged
onset), through December 31, 2015 (date last insured). The time frame relevant to her claim for SSI
is August 1, 2014 (the date she applied for SSI) through December 7, 2016 (the date the ALJ issued
his decision). See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (indicating that SSI
claimant becomes eligible to receive benefits in the first month in which she is both disabled and
has an SSI application on file).
2

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(7) Plaintiff was not under a disability, as defined in the Act, from May 28,
2014, through the date of the decision.
III.

STANDARD OF REVIEW
Review of the Commissioner’s final decision is limited to determining whether

the decision is supported by substantial evidence from the record and was a result of
the application of proper legal standards. Carnes v. Sullivan, 936 F.2d 1215, 1218
(11th Cir. 1991) (“[T]his Court may reverse the decision of the [Commissioner] only
when convinced that it is not supported by substantial evidence or that proper legal
standards were not applied.”); see also Lewis v. Callahan, 125 F.3d 1436, 1439 (11th
Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). “A determination
that is supported by substantial evidence may be meaningless . . . if it is coupled with
or derived from faulty legal principles.” Boyd v. Heckler, 704 F.2d 1207, 1209 (11th
Cir. 1983), superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd.,
921 F.2d 1210, 1214 (11th Cir. 1991). As long as proper legal standards were applied,
the Commissioner’s decision will not be disturbed if in light of the record as a whole
the decision appears to be supported by substantial evidence. 42 U.S.C. § 405(g);
Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998); Lewis, 125 F.3d at 1439; Foote
v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). Substantial evidence is more than a
scintilla, but not a preponderance; it is “such relevant evidence as a reasonable person
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would accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)); Lewis, 125
F.3d at 1439. The court may not decide the facts anew, reweigh the evidence, or
substitute its judgment for that of the Commissioner. Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990) (citations omitted). Even if the evidence preponderates
against the Commissioner’s decision, the decision must be affirmed if supported by
substantial evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).
The Act defines a disability as an “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). To qualify
as a disability the physical or mental impairment must be so severe that the claimant
is not only unable to do her previous work, “but cannot, considering [her] age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy.” Id. § 423(d)(2)(A). Pursuant to 20 C.F.R.
§ 404.1520(a)–(g),3 the Commissioner analyzes a disability claim in five steps:

In general, the legal standards applied are the same regardless of whether a claimant seeks
DIB or SSI, but separate, parallel statutes and regulations exist for DIB and SSI claims (see 20
3

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1.

If the claimant is performing substantial gainful activity, she is not

disabled.
2.

If the claimant is not performing substantial gainful activity, her

impairments must be severe before she can be found disabled.
3.

If the claimant is not performing substantial gainful activity and she has

severe impairments that have lasted or are expected to last for a continuous period of
at least twelve months, and if her impairments meet or medically equal the criteria of
any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is
presumed disabled without further inquiry.
4.

If the claimant’s impairments do not prevent her from doing her past

relevant work, she is not disabled.
5.

Even if the claimant’s impairments prevent her from performing her past

relevant work, if other work exists in significant numbers in the national economy that
accommodates her RFC and vocational factors, she is not disabled.
The claimant bears the burden of establishing a severe impairment that keeps
her from performing her past work. 20 C.F.R. § 404.1512. If the claimant establishes

C.F.R. §§ 404, 416). Therefore, citations in this Order should be considered to refer to the
appropriate parallel provision. The same applies to citations of statutes or regulations found in
quoted court decisions.
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such an impairment, the burden shifts to the Commissioner at step five to show the
existence of other jobs in the national economy which, given the claimant’s
impairments, the claimant can perform. MacGregor v. Bowen, 786 F.2d 1050, 1052
(11th Cir. 1986). If the Commissioner carries this burden, the claimant must then
prove she cannot perform the work suggested by the Commissioner. Hale v. Bowen,
831 F.2d 1007, 1011 (11th Cir. 1987).
IV.

PLAINTIFF’S PERSONAL, EMPLOYMENT, AND MEDICAL HISTORY
A.

Personal and Employment History

At Plaintiff’s hearing, held August 4, 2016, she testified that she last worked
in 2010 as a housekeeper/maid, supervising six others (tr. 49). She quit her job
because she could not physically do the work anymore because she was out of breath
much of the time and her back hurt (tr. 51–52). In May of 2014, Plaintiff experienced
headaches, difficulty turning her neck, and a lack of vision in her left eye, prompting
her to see Keith B. Banton, M.D., and ultimately to undergo surgery for a stroke-like
condition (tr. 52). Plaintiff indicated that after the surgery her neck difficulties
“released some,” her headaches cleared up, and her vision was restored except for
occasional fuzziness (tr. 53, 55, 64).

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Plaintiff also described having a problem with maintaining balance, which she
compensates for by holding onto the wall or by stopping momentarily when she walks
(tr. 53–55). Plaintiff also stated she experiences shortness of breath, which results in
her not being able to stand long and not being able to walk more than fifty feet
without getting out of breath (tr. 54). Plaintiff reported having reduced strength in the
left arm (tr. 64–65). She also stated that, possibly as a result of her stroke, she
experiences occasional slurred speech, dizziness, and “pass-out spells” that occur
approximately once every other month (tr. 65–66). Plaintiff stated that she takes
Zoloft for depression but had never been to a mental health specialist, psychologist,
or counselor (tr. 55–56). She indicated that she gets depressed sometimes because she
cannot do things she used to be able to do, which causes her to be anxious or
frustrated with herself (tr. 68–69). When asked what her most difficult problems are,
Plaintiff identified her breathing and balance problems (tr. 62).
As for daily activities, Plaintiff stated that she is unable to do certain chores
such as cleaning, mopping, sweeping, and vacuuming because they cause her to be out
of breath (tr. 57). She stated shopping is difficult for her because of having to walk
the aisles and needing to reach for items on shelves (tr. 58). She reported that she
sometimes cooks for the family, though, and that she can iron and fold clothes because
she can do those tasks while sitting down (tr. 57–58). Plaintiff mentioned that she is

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able to drive but does not drive often (tr. 58). She estimated that during the course of
an eight-hour day she can stand for about an hour and a half, that she lies down for
two hours, and that she can sit for the rest of the time (tr. 68). When asked what
activities she engages in at home, Plaintiff stated, “Just watching my soaps” (tr. 66).

B.

Relevant Medical History4

Plaintiff established medical care at the office of Dr. Banton on May 28, 2014,
complaining of loss of vision in one eye, headaches, blurred vision, shortness of
breath, and dyspnea upon exertion (tr. 30). Dr. Banton referred her to the emergency
room for further evaluation, where testing revealed amaurosis fugax, carotid artery
stenosis, hypertension, and thrombocytopenia (id.). On May 29, 2014, Plaintiff was
evaluated by Ashish K. Gupta, M.D., who diagnosed a symptomatic transient ischemic
attack and noted that Plaintiff would require a right carotid endarterectomy, which was
successfully performed on June 11, 2014 (id.). Dr. Gupta noted that Plaintiff’s
symptoms improved after the operation, and three months later she was 100% healed
and back to her normal activities (tr. 34).

Most information in this section is derived from the ALJ’s opinion, as indicated by
references to transcript pages 27 through 36. The undersigned has also included herein the weight
assigned by the ALJ to certain medical and lay opinions of record that are relevant to the issues
raised in this appeal.
4

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Plaintiff was also noted to have a history of COPD, as treatment records showed
her to have commonly complained of shortness of breath upon exertion (tr. 30).
Treatment notes from Dr. Banton, however, indicated a normal chest examination, as
well as even, unlabored respiration (tr. 34). While Plaintiff also had a history of
hypertension, it was being managed with medication (tr. 30).
The ALJ noted that Plaintiff complained of back pain during a medical
consultative examination with Krzysztof Lewandowski, M.D., on August 31, 2016
(which post-dates the time frame for her DIB claim). However, the ALJ could find
no objective evidence to indicate any injury or symptomatology relating to her back
(tr. 30). Dr. Lewandowski’s own medical impressions excluded back pain. Although
Dr. Lewandowski acknowledged that Plaintiff did complain about “back pain for a
long time,” he noted that there was no mention of back pain in any of her medical
records (tr. 495). His own physical examination revealed no musculoskeletal
impairment, and he also remarked that Plaintiff moved without difficulty and without
assistance during the visit and dressed and undressed without help (id.).
The ALJ also noted Dr. Lewandowski’s medical source statement, which
evaluated Plaintiff as being able to lift up to twenty pounds continuously and up to
100 pounds occasionally, and to carry up to ten pounds continuously, up to twenty

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pounds frequently, and up to 100 pounds occasionally (tr. 34). Dr. Lewandowski also
opined that Plaintiff could sit, stand, and walk for eight hours each during an eighthour workday (id.).

The ALJ gave substantial weight to the opinion of Dr.

Lewandowski, finding it consistent with the evidence of record (tr. 35).
As for other opinion evidence, the ALJ gave substantial weight to the opinion
of state agency medical consultant Loc Kim Le, M.D., who stated that Plaintiff could
perform light work so long as she could avoid concentrated exposure to humidity and
fumes, odors, dusts, gases, and poor ventilation (id.).
The ALJ gave limited weight to the opinion of Owen D. Oksanen, M.D., whose
September 24, 2012, consultative examination report predated Plaintiff’s onset date.
The ALJ did note Dr. Oksanen’s determination that Plaintiff appeared to have no
significant difficulty with sitting, standing, walking, lifting, carrying, handling objects,
hearing, speaking, or traveling, as well as his comment that “[r]ight now [Plaintiff]
looks like she could work” (tr. 35, 383).
As for Plaintiff’s mental health, the ALJ noted her medical history of
depression and anxiety, for which she has been prescribed Vistaril and Zoloft (tr. 31).
The ALJ also noted Plaintiff’s testimony that she had never received specialized
mental health therapy or counseling (id.). Plaintiff reported problems with memory,

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completing tasks, understanding, and following instructions, and her husband stated
that he has to repeat instructions to her before she understands them. However, Dr.
Lewandowski found “her neurological examination was normal” (tr. 34). Further, the
ALJ noted Plaintiff’s statement that she watches soap operas on television, which
suggested to him that she had “adequate attention and concentration for the task, as
she did not indicate that she is unable to follow the storyline of programs she watches”
(tr. 31).
The ALJ accorded substantial weight to the opinion of state agency
psychological consultants Catherine Nunez, Ph.D., and Val Bee, Psy.D., who found
Plaintiff to have mild restrictions in her daily living activities, in social functioning,
and in maintaining concentration, persistence or pace (tr. 35). The ALJ found their
opinions to be consistent with the weight of the record, particularly in light of the fact
that she was not receiving any specialized mental health counseling
Finally, the ALJ noted statements made by Plaintiff’s husband to the effect that
she had difficulty with physical activity, memory, and concentration (tr. 35).
However, the ALJ pointed out that her husband offered a lay opinion based upon
casual observation and not based on objective medical examination and testing. As
such, the ALJ found the husband’s statements did not outweigh the other medical

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evidence in the file concerning Plaintiff’s functional abilities, and accordingly gave
them little weight (id.).
C.

Other Information Within Plaintiff’s Claim File

On May 19, 2016, prior to her hearing before the ALJ, Plaintiff’s counsel sent
a letter to the ALJ asking, in part, that the ALJ order a psychological evaluation for
her (tr. 338–39). Counsel explained that Plaintiff likely had memory loss and that she
had complained of such since her stroke surgery in 2014. Counsel also noted that
Plaintiff had “presented to my office with obvious memory issues and appeared
confused, having to call her husband on the phone for matters I thought she would
remember” (tr. 338). Counsel also noted that an MRI of Plaintiff’s brain from May
2014 “was read as abnormal due to microvascular white matter ischemic gliosis” (tr.
338). The ALJ did not order the psychological evaluation.
V.

DISCUSSION
Plaintiff first contends that the ALJ erred in failing to adequately develop the

record regarding Plaintiff’s mental impairments, specifically her memory, by not
ordering a psychological consultative examination.

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The ALJ addressed Plaintiff’s neurological and mental health issues in his
opinion, noting that although Plaintiff complained of headaches, dizziness, and
fatigue, her neurological examination results were found to be normal. While Plaintiff
had a transient ischemic attack, after which she underwent carotid surgery, she had
essentially a full neurological recovery. The ALJ acknowledged Plaintiff’s history of
depression and anxiety but noted that she never received mental health counseling and
that she had no difficulties with personal care due to mental impairments. While the
ALJ also recognized Plaintiff’s assertion that she had problems with memory as well
as completing tasks and following instructions, and that her husband reported that he
has to repeat instructions to her before she understands, the ALJ cited the fact that
Plaintiff regularly watched soap operas on television, thus indicating that she had the
ability to remember and follow the storylines of the shows. In the opinions of Drs.
Nunez and Bee, the psychological consultants to whom the ALJ accorded substantial
weight, each noted that Plaintiff had no neurological deficits, that Plaintiff had ceased
taking her medication for depression, and that she had reported that her mental issues
did not affect her ability to work (tr. 80, 111–12).
Against this backdrop, Plaintiff argues that the ALJ should have ordered a
psychological examination to evaluate her memory issues. The ALJ has a basic duty
to develop the record fully and fairly. Wilson v. Apfel, 179 F.3d 1276, 1278 (11th
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Cir. 1999). In accordance with that duty, “the ALJ may order a physical or mental
examination of a claimant at the government’s expense; but the ALJ is not required
to order an examination if it is not necessary to enable the ALJ to make a disability
determination.” Outlaw v. Barnhart, 197 F. App’x 825, 828 (11th Cir. 2006) (citing
Wilson and 20 C.F.R. § 404.1517); see also Ingram, 496 F.3d at 1269; Castle v.
Colvin, 557 F. App’x 849, 853 (11th Cir. 2014) (finding that a consultative
examination was unnecessary where claimant had not sought treatment for his knee,
denied musculoskeletal issues, and engaged in activities inconsistent with disabling
knee problems). Ultimately, it is the claimant who bears the burden of producing
evidence of disability. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
“An ALJ’s responsibility to develop the record cannot require the ALJ to order a
consultative examination on an issue until ‘the plaintiff has satisfied his or her burden
to provide objective evidence sufficient to suggest a reasonable possibility that a
severe impairment exists.’” Goolsby v. Colvin, No. 2:15-CV-0501-JHE, 2016 WL
5390563, at *6 (N.D. Ala. Sept. 27, 2016) (quoting Bryant v. Barnhart, 36 F. App’x
405, 407 (10th Cir. 2002)).
Plaintiff cites only to her own subjective assertions and her husband’s lay
observations as evidence in support of her alleged memory problems. She provides
no traceable medical condition upon which her alleged memory problems could be
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based, and indeed, indications in the record are sparse that Plaintiff even had such a
problem. Furthermore, the prevailing medical opinion is that Plaintiff remains
functional despite any of her mental issues.
To establish disability based on testimony concerning one’s subjective
symptoms, a three-part standard must be satisfied. Wilson v. Barnhart, 284 F.3d 1219,
1225 (11th Cir. 2002). That is, a claimant must first show evidence of an underlying
medical condition and then either (a) objective medical evidence that confirms the
severity of the alleged symptoms stemming from that condition, or (b) that the
objectively determined medical condition is so severe that it can reasonably be
expected to cause the alleged symptoms. Id.; Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991). Because Plaintiff has produced no evidence of an underlying
medical condition, she cannot establish disability based upon her subjective reporting
of memory issues. And, because the ALJ found sufficient evidence in the record from
which to make his determination as to her memory issues and mental health problems
as a whole, there was no demonstrable need for further medical testing.
As her second ground for relief, Plaintiff contends that the ALJ erroneously
evaluated her testimony regarding her pain symptoms. Referring to the Eleventh
Circuit “pain standard” recited above, see Wilson, supra, and quoting Foote v. Chater,
67 F.3d 1553, 1561 (11th Cir. 1995), Plaintiff argues that “pain alone can be
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disabling, even when its existence is unsupported by objective medical evidence”
(ECF No. 14 at 8). Plaintiff thus contends that the ALJ could not have concluded that
Plaintiff was not disabled simply on account of the fact that there was no objective
evidence to corroborate her subjective complaints of pain (see id. at 10).
Plaintiff either misperceives the pain standard or the ALJ’s findings in relation
to that standard. In particular, the court notes that the first part of that standard
requires Plaintiff to demonstrate evidence of an underlying medical condition.
Wilson, 284 F.3d at 1225. Foote is not inapposite, for that case held that “[a]
claimant’s subjective testimony supported by medical evidence that satisfies the pain
standard is itself sufficient to support a finding of disability.” Foote v. Chater, 67
F.3d 1553, 1561 (11th Cir. 1995) (emphasis supplied).

See also 20 C.F.R.

§ 404.1529(a) (eff. Apr. 1, 2016) (“[T]here must be medical signs and laboratory
findings which show that you have medical impairment(s) which could reasonably be
expected to produce the pain . . .”) (emphasis added); Foote, 67 F.3d at 1561 (citing
§ 404.1529 and noting that existence of impairment must first be established before
evidence relating to “the intensity, persistence, and functionally limiting effects of
pain or other symptoms” is considered “in deciding the issue of disability”).
In this case, the ALJ noted Plaintiff’s reported experience with back pain, but
he also noted that Dr. Lewandowski could find no medically diagnosed condition in
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the record that might have been responsible for this pain (tr. 30). Correspondingly,
the ALJ concluded that the record contained no medically determinable impairment
relating to her back pain issue. Indeed, it is notable that, although Plaintiff in her brief
presses the argument that the ALJ improperly discounted her symptoms, the brief fails
even to describe any body part responsible for her pain, much less identify a tangible
medical condition that might cause that pain.

Absent an underlying medical

condition, Plaintiff’s subjective claim of pain alone cannot establish disability.
VI.

CONCLUSION
For the foregoing reasons, the Commissioner’s decision is supported by

substantial evidence and should not be disturbed. 42 U.S.C. § 405(g); Lewis, 125 F.
3d at 1439; Foote, 67 F.3d at1560. Furthermore, Plaintiff has failed to show that the
ALJ applied improper legal standards, erred in making his findings, or that any other
ground for reversal exists.
Accordingly, it is hereby ORDERED:
1.

That the decision of the Commissioner is AFFIRMED, and this action

is DISMISSED.
2.

That JUDGMENT is entered, pursuant to sentence four of 42 U.S.C.

§ 405(g), AFFIRMING the decision of the Commissioner.
3.

That the Clerk is directed to close the file.

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At Pensacola, Florida this 1st day of May 2019.
/s/ Elizabeth M. Timothy
ELIZABETH M. TIMOTHY
CHIEF UNITED STATES MAGISTRATE JUDGE

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