NORMAN v. COLVIN et al

Filing 19

ORDER re 1 Complaint filed by KIMBERLY J NORMAN. It is ordered that the decision of the Social Security Commissioner denying Plaintiff's application is affirmed. Ordered by US Magistrate Judge STEPHEN HYLES on 11-3-14. (mpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
KIMBERLY J. NORMAN,
Plaintiff,
v.
CAROLYN COLVIN,
Commissioner of Social Security,
Defendant.

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CASE NO. 3:13-CV-119-MSH
Social Security Appeal

ORDER
The Social Security Commissioner, by adoption of the Administrative Law
Judge’s (ALJ’s) determination, denied Plaintiff’s application for disability benefits,
finding that she was not disabled within the meaning of the Social Security Act and
Regulations. Plaintiff contends that the Commissioner’s decision was in error and seeks
review under the relevant provisions of 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c). All
administrative remedies have been exhausted. Both parties filed their written consents
for all proceedings to be conducted by the United States Magistrate Judge, including the
entry of a final judgment directly appealable to the Eleventh Circuit Court of Appeals
pursuant to 28 U.S.C. § 636(c)(3).
LEGAL STANDARDS
The court’s review of the Commissioner’s decision is limited to a determination of
whether it is supported by substantial evidence and whether the correct legal standards
were applied. Walker v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987) (per curiam).

“Substantial evidence is something more than a mere scintilla, but less than a
preponderance. If the Commissioner's decision is supported by substantial evidence, this
court must affirm, even if the proof preponderates against it.” Dyer v. Barnhart, 395 F.
3d 1206, 1210 (11th Cir. 2005) (internal quotation marks omitted). The court’s role in
reviewing claims brought under the Social Security Act is a narrow one. The court may
neither decide facts, re-weigh evidence, nor substitute its judgment for that of the
Commissioner.1 Moore v. Barnhart, 405 F. 3d 1208, 1211 (11th Cir. 2005). It must,
however, decide if the Commissioner applied the proper standards in reaching a decision.
Harrell v. Harris, 610 F.2d 355, 359 (5th Cir. 1980) (per curiam). The court must
scrutinize the entire record to determine the reasonableness of the Commissioner’s
factual findings.

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

However, even if the evidence preponderates against the Commissioner’s decision, it
must be affirmed if substantial evidence supports it. Id.
The Plaintiff bears the initial burden of proving that she is unable to perform her
previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). The Plaintiff’s burden
is a heavy one and is so stringent that it has been described as bordering on the
unrealistic. Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981).2 A Plaintiff
seeking Social Security disability benefits must demonstrate that he/she suffers from an
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Credibility determinations are left to the Commissioner and not to the courts. Carnes v.
Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991). It is also up to the Commissioner and not to the
courts to resolve conflicts in the evidence. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir.
1986) (per curiam); see also Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir. 1986).

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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decision of the former Fifth Circuit rendered
prior to October 1, 1981.
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impairment that prevents him/her from engaging in any substantial gainful activity for a
twelve-month period. 42 U.S.C. § 423(d)(1). In addition to meeting the requirements of
these statutes, in order to be eligible for disability payments, a Plaintiff must meet the
requirements of the Commissioner’s regulations promulgated pursuant to the authority
given in the Social Security Act. 20 C.F.R. § 404.1 et seq.
Under the Regulations, the Commissioner uses a five-step procedure to determine
if a Plaintiff is disabled. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20
C.F.R. § 404.1520(a)(4). First, the Commissioner determines whether the Plaintiff is
working.

Id.

If not, the Commissioner determines whether the Plaintiff has an

impairment which prevents the performance of basic work activities. Id. Second, the
Commissioner determines the severity of the Plaintiff’s impairment or combination of
impairments. Id. Third, the Commissioner determines whether the Plaintiff’s severe
impairment(s) meets or equals an impairment listed in Appendix 1 of Part 404 of the
Regulations (the “Listing”).

Id.

Fourth, the Commissioner determines whether the

Plaintiff’s residual functional capacity can meet the physical and mental demands of past
work. Id. Fifth and finally, the Commissioner determines whether the Plaintiff’s residual
functional capacity, age, education, and past work experience prevent the performance of
any other work. In arriving at a decision, the Commissioner must consider the combined
effects of all of the alleged impairments, without regard to whether each, if considered
separately, would be disabling. Id. The Commissioner’s failure to apply correct legal
standards to the evidence is grounds for reversal. Id.

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ISSUES
I.

Whether the Residual Functional Capacity assessment formulated by the
ALJ is supported by substantial evidence.

II.

Whether the ALJ properly assessed Plaintiff’s credibility as to her subjective
allegations of pain.
Administrative Proceedings
Plaintiff applied for disability insurance benefits and supplemental security

income on March 22, 2010. (Tr. 13, ECF No. 12-2.) Plaintiff alleged disability as of
April 15, 2004. (Id.) Plaintiff’s application was denied initially and on reconsideration,
and Plaintiff timely requested a hearing before an Administrative Law Judge (“ALJ”).
Plaintiff appeared before the ALJ on December 7, 2011. Following the hearing, the ALJ
issued an unfavorable decision on May 2, 2012. (Tr. 13-22.) The Appeals Council
ultimately denied Plaintiff’s Request for Review on August 30, 2013. (Tr. 1-3.) This
appeal followed.
Statement of Facts and Evidence
After consideration of the written evidence and the hearing testimony in this case,
the ALJ determined that Plaintiff met the insured status requirement of the Social
Security Act through June 30, 2008. (Tr. 15.) He further found that Plaintiff had not
engaged in substantial gainful activity as defined by the Act since her alleged onset date.
(Id.) The ALJ found that Plaintiff had the severe impairments of fibromyalgia, bipolar
disorder, and panic disorder.

(Id.)

The ALJ then determined that Plaintiff has no

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impairments that meet or medically equal any one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. (Tr. 16.)
After consideration of the entire record, the ALJ found that Plaintiff retained the
residual functional capacity (RFC) to perform the full range of medium work with the
added non-exertional limitations of only “unskilled work involving simple, routine,
repetitive tasks with no more than simple, short instructions and simple work-related
decisions with few workplace changes performed at a nonproduction rate pace. . . . [and]
no interaction with the general public and only occasional[] interaction with supervisors
or co-workers.” (Tr. 17.) The ALJ concluded that Plaintiff has no past relevant work.
(Tr. 20.)
Plaintiff was twenty-two years old on her alleged disability onset date, which is
considered to be a younger individual. (Id.) The ALJ found that Plaintiff had at least a
high school education and could communicate in English. (Tr. 31.) Considering her
education, age, work experience, and RFC, the ALJ elicited testimony from a vocational
expert (VE) that there were jobs which existed in significant numbers in the national
economy which Plaintiff could perform. (Id.) The ALJ therefore found that Plaintiff has
not been under a disability as defined in the Act from April 15, 2004 through the date of
his decision. (Tr. 22.)
DISCUSSION
I.

Does substantial evidence support the RFC assessment made by the ALJ?
Plaintiff first asserts that the ALJ did not take into account the opinions of two

state agency psychologists, Drs. Cooper and Turzo. (Pl.’s Br. 11-14, ECF No. 15.) The
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Court notes that neither psychologist treated or examined Plaintiff. Neither found more
than moderate limitations in Plaintiff’s ability to maintain concentration, persistence or
pace.

Neither indicated in their respective Mental Residual Functional Capacity

Assessments that Plaintiff had substantial limitations in her ability to accept instructions
from supervisors, work cooperatively with other employees, or respond to ordinary
workplace changes. (Tr. 473, 515-517.)
In formulating Plaintiff’s RFC the ALJ included nonexertional limitations and
restricted her to unskilled work with simple, routine, and repetitive tasks and requiring
only simple, short instructions and simple work related decisions with few workplace
changes. (Tr. 17.) In doing so the ALJ referenced Dr. Cooper’s records review and
opinion that Plaintiff would be more likely to perform better without extensive interaction
with the general public. (Tr. 20.) The ALJ included as a limitation in the RFC that
Plaintiff have no interaction with the general public. (Id.) While Plaintiff correctly
points out that the ALJ did not specifically reference Dr. Turzo or her opinion, the full
substance of that February 23, 2011 opinion (Tr. 515-517) is included in the assessed
RFC.
No evidence exists in the record that Plaintiff has disabling nonexertional
limitations.

No medical source has opined that she is unable to work because her

nonexertional limitations disable her from doing so. Indeed, a consultative examining
psychologist, Dr. Matt Butryn, found her to have no more than mild limitations in her
ability to work cooperatively when compliant with prescribed medications. (Tr. 557560.) The ALJ pointed out that Dr. Butryn scored Plaintiff 29/30 on a mental status
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evaluation and found her to be capable of carrying out the type of work described by the
ALJ in his RFC assessment. Significant weight was given to Dr. Butryn’s findings. (Tr.
19, 20.)
Plaintiff argues that her impairments may cause her to improperly react to
criticism from supervisors, leading to her dismissal from any job. (Pl. Br. 13.) While
Plaintiff is no doubt correct in the main premise of her argument, that a single outburst by
an employee may result in dismissal, that does not mean anyone who might burst out is
thereby disabled to work and entitled to benefits under the Social Security Act. Her first
contention is without merit.
II.

Did the ALJ properly evaluate Plaintiff’s credibility?
In her second contention of error, Plaintiff asserts that the ALJ improperly assessed

her pain complaints. (Pl. Br. 15.) The ALJ determined Fibromyalgia to be a “severe”
impairment and stated that such a disorder can reasonably be expected to cause pain. (Tr.
18.) The ALJ then proceeded to review the medical evidence of record to determine
whether the pain was of such intensity and persistence to cause disabling limitations.
Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995).
Because pain is subjective in nature as to intensity and persistence, an ALJ is
required to evaluate pain complaints from the perspective of a claimant’s credibility. Id.
The ALJ here discounted Plaintiff’s credibility and gave his reasons for doing so. He
noted that Plaintiff had full range of motion in all areas on examination in August of
2010. (Tr. 19, 577-580.) He also considered and discussed Plaintiff’s noncompliance
with prescribed treatment as well as her assertion of discontinuing marijuana use in 2001,
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but testing positive for marijuana in March 2009. (Tr. 19, 20.) The ALJ’s explanation for
determining that Plaintiff is not fully credible is adequate and supported by substantial
evidence in the record. Thus, there is no error.
CONCLUSION
WHEREFORE, for the foregoing reasons, it is ORDERED that the determination
of the Social Security Commissioner is AFFIRMED.
SO ORDERED, this 3rd day of November, 2014.
/s/ Stephen Hyles
UNTED STATES MAGISTRATE JUDGE

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